UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


THE 


LAW    OF    RAILWAYS: 


EMBRACING 

CORPORATIONS,     EMINENT     DOMAIN,    CONTRACTS,     COMMON 

CARRIERS    OF    GOODS     AND    PASSENGERS,   TELEGRAPH 

COMPANIES,  EQUITY  JURISDICTION,   TAXATION, 

CONSTITUTIONAL     LAW,    INVESTMENTS, 

&c,   &c. 


BY 


ISAAC   F.  REDFIELD,   LL.D., 

CHIEF   JUSTICE   OF   VERMONT. 


FIFTH    EDITION, 

CAREFULLY       REVISED       AND       ENLARGED. 


VOL.  I. 


BOSTON: 

LITTLE,   BROWN,   AND    COMPANY. 

1873. 


Entered  according  to  Act  of  Congress,  in  the  year  1857,  by 

ISAAC    F.    REDFIELD, 

In  the  Clerk's  Office  of  the  District  Court  of  the  District  of  Vermont. 


Entered  according  to  Act  of  Congress,  in  the  year  1858,  by 

ISAAC    F.    KEDF1ELD, 

In  the  Clerk's  Office  of  the  District  Court  of  the  District  of  Vermont. 


Entered  according  to  Act  of  Congress,  in  the  year  1867,  by 

ISAAC    F.    REDFIELD, 

In  the  Clerk's  Office  of  the  District  Court  of  the  District  of  Massachusetts. 


Entered  according  to  Act  of  Congress,  in  the  year  1869,  by 

ISAAC     F.    REDFIELD, 

In  the  Clerk's  Office  of  the  District  Court  of  the  District  of  Massachusetts. 


Entered  according  to  Act  of  Congress,  in  the  year  1873,  by 

ISAAC    F.    REDFIELD, 

In  the  Office  of  the  Librarian  of  Congress,  at  Washington. 


T 
£2415 r 

\tl3 


CAMBRIDGE: 

PRESS    OF    JOHN     WILSON    AND    SON. 


i? 


I 


PREFACE   TO   THE   FIFTH   EDITION. 


We  have  made  no  change  in  the  arrangement  of  the 
work,  in  this  edition,  except  to  place  the  title  of  each  sep- 
arate portion  of  the  work  on  the  leaf  preceding  it,  and  to 
number  the  Parts,  and  place  their  titles  on  the  first  page 
of  the  Table  of  Contents,  as  a  Summary  ;  thus  enabling 
any  one  to  see  at  a  glance  what  the  work  contains.  It 
will  thus  be  seen  that  it  really  embraces  the  discussion  of 
thirteen  distinct  topics  of  law,  in  each  of  which  is  em- 
braced an  analysis  of  the  law,  almost  as  comprehensive 
and  complete  as  a  distinct  treatise.  The  Parts  upon 
Corporations  ;  Common  Carriers  of  Goods  and  Passen- 
gers ;  Telegraphs  ;  Mandamus  ;  Certiorari,  and  some 
others,  are  complete  treatises,  and  all  the  Parts  embrace 
every  thing  pertaining  to  railways,  and  much  more. 

The  plan  of  the  work  is  novel,  but  it  seems  the  only  one 
suited  to  such  a  work ;  and  by  striking  out  nearly  all  the 
opinions  in  the  notes,  and  rearranging  to  some  extent 
the  other  portions  of  the  notes,  so  as  to  bring  them  into 
the  same  order  as  if  now  prepared  for  the  first  time,  we 
have  saved  nearly  space  enough  for  the  new  matter 
added,  and  at  the  same  time  have  been  able  to  have  the 
work  come  nearer   its  original  ideal  —  that  of  giving  the 


756029 


iv  PREFACE   TO    THE    FIFTH    EDITION. 

matic  analysis  of  principles  in  the  text,  and  a  com- 
plete  digest  of  all  the  cases  in  the  notes  —  than  has  ever 
been  possible  before. 

The  American  opinions  found  in  the  notes  to  the  for- 
mer editions  were  originally  inserted,  because  they  con- 
Btituted,  to  Bome  extent,  the  basis  of  important  doctrines, 
connected  with  the  law  of  railways,  and  could  not  be 
readily  obtained  elsewhere  by  the  profession  in  many  por- 
tions of  the  country.  But  now  that  we  are  able  to  fur- 
nish tin-  leading  American  cases  upon  the  subject  in 
separate  volumes,  to  those  who  desire  to  obtain  them 
in  thai  form,  there  seems  no  propriety  in  longer  in- 
cumbering the  pages  of  our  principal  work  with  any  of 
them,  however  indispensable  it  might  formerly  have  been. 
And  although  many  law  book-makers  have  adopted  that 
course,  and  some  of  high  authority,  at  an  early  day,  we 
glad  to  see  that  the  fashion  is  going  into  disuse,  as 
we  have  long  since  become  convinced  it  wras  not  the  best 
nmde.  either  in  writing  or  editing  law  books,  and  have 
eliminated  as  fast  as  possible  all  extended  opinions  from 
all  law  treatises  with  which  we  have  had  to  do  of  late. 
Where  an  opinion  contains  the  basis  of  the  law  upon  a 
particular  point,  as  some  of  the  English  cases  do,  and 
bl)  some  few  of  the  American  cases,  it  may  as  well 
riven  in  that  form;  and  when  a  brief  extract  from  an 
opinion  gives  the  very  point  we  desire,  it  comes  with  more 
it  in  that  form  than  any  other;  but,  beyond  that, 
opinions  Bhould  never  be  permanently  retained  in  text- 
books. 

'I"h'-  additions  to  the  present  edition,  both  in  the  text 
and  notes,  have  been  very  large  for  the  short  time  since 


PREFACE   TO    THE    FIFTH    EDITION.  V 

the  former  one,  covering  about  a  hundred  pages  in  the 
work  itself,  besides  the  appendix  of  the  latest  cases,  re- 
ported while  the  work  was  in  press.  When  any  late  case 
establishes  any  new  point,  it  is  inserted  in  the  text,  and 
the  exact  point  of  all  the  new  cases  is  given  in  the  notes, 
when  it  varies  in  any  particular  from  those  before  stated. 
.  We  have  not  the  vanity  to  suppose  the  work  will  be 
found  perfect,  or  complete  in  all  its  details.  That  is 
scarcely  to  be  expected  in  any  work  covering  so  wide  a 
space.  But  we  believe  it  contains  as  much  that  will  be 
found  useful  and  instructive,  both  to  students  and  the 
profession  generally,  as  it  would  be  reasonable  to  expect 
in  the  same  space,  without  such  an  extreme  degree  of 
condensation  as  greatly  to  impair  both  its  clearness  and 
completeness. 

In  taking  leave  of  our  professional  brothers,  we  beg  to 
assure  them  how  deeply  and  gratefully  we  appreciate  their 
uniform  kindness  and  respect  ;  and  our  only  surprise  is, 
that,  in  our  humble  and  patient  way  of  daily  toil  on  their 
behalf,  we  should  have  been  able  to  earn  so  much  at  their 
hands.  We  will  not,  however,  impugn  their  good  sense 
and  discrimination  by  presuming  to  doubt  its  propriety, 
however  difficult  it  may  be  for  us  always  to  compre- 
hend it. 

I.  F.  R. 

Boston,  Jan.  1,  1873. 


PREFACE   TO   THE  FOURTH   EDITION. 


]\  presenting  this  edition  of  our  first  book  to  the  profes- 
sion, we  have  to  crave  the  indulgence  of  an  elder  brother, 
in  alluding  briefly  to  the  origin  and  history  of  the  work. 
The  book  was  undertaken  at  a  period  when  we  had  it  in  our 
power  to  command  considerable  portions  of  time,  in  every 
year,  for  uninterrupted  study.  The  work  was,  therefore, 
prepared  with  great  labor  and  care  ;  and  so  carefully  printed 
as  to  attract  special  attention  abroad  on  that  account.  It 
was  everywhere  received  in  a  spirit,  and  with  a  degree  of 
cordial  commendation,  both  at  home  and  abroad,  which  the 
author  had  scarcely  dared  to  expect.  But  it  was  gratifying 
to  feel  that  his  efforts  to  give  the  entire  law  upon  every  topic 
he  touched,  as  fully  as  if  a  special  brief  had  been  prepared 
upon  the  particular  points,  and,  as  nearly  as  might  be  allow- 
able in  the  form  of  successive  judicial  opinions  upon  the 
si  vera)  subjects,  were  duly  appreciated  by  the  profession,  or 
certainly  by  those  who  had  leisure  and  opportunity  to  exam- 
ine tip    work  carefully. 

1  hit  for  some  reasons  the  first  two  editions  did  not  obtain 
Ktensive  a  sale  as  to  become  at  all  remunerative  for  the 
very  large  amount  of  labor  bestowed.  This  led  us  to  sus- 
pect that  the  baldness  of  our  title,  "  The  Law  of  Railways," 
might  have  led  the  mass  of  the  profession,  who  were  not 
much  engaged  in  railway  litigation,  to  suppose  that  our  book 
treated  of  do  other  topics.     We  were  convinced  that  the 


PREFACE   TO   THE    FOURTH   EDITION.  vii 

book  was  not  generally  understood  to  comprehend  compact 
treatises  upon  Corporations  ;  Eminent  Domain  ;  Contracts 
for  Construction  ;  Mandamus  ;  Certiorari  ;  Equitable  Con- 
trol of  Public  Works  ;  Taxation  ;  Indictments  against 
Corporations  ;  Quo  Warranto  ;  Constitutional  Questions 
affecting  Legislative  Grants  ;  Investments,  Stocks,  Mort- 
gages, Police,  Amalgamation,  &c,  as  well  as  all  other  mat- 
ters in  the  law,  more  exclusively  affecting  railways. 

When  the  third  edition  was  called  for,  we  resolved  to  make 
the  treatment  of  the  above  topics,  and  all  others  in  the  book, 
as  complete  as  possible ;  and  to  that  end  had  expended  a 
large  amount  of  labor  ;  but  before  the  work  was  more  than 
half  through  the  press,  we  received  an  unexpected  public 
appointment  abroad,  which  compelled  us  to  push  the  first 
half  of  the  second  volume  through  the  press  in  a  few  days, 
and  to  leave  the  remaining  materials  in  very  judicious  hands, 
to  be  used  as  far  as  needful  in  completing  the  volume  in 
proper  size;  and  which,  we  are  happy  to  say,  was  exceedingly 
well  done.  But  the  difficulty  in  knowing  precisely  what  to 
omit,  in  our  absence,  led  to  the  natural  result  of  using  the 
whole  ;  which  swelled  the  second  volume  to  somewhat  un- 
wieldy proportions  ;  and  presented  some  matters,  which  we 
had  originally  prepared  for  other  occasions,  in  a  shape  not 
fully  assimilated  to  the  present  work. 

By  enlarging  in  the  present  edition  the  scope  of  the  work 
on  Common  Carriers  of  Goods  and  Passengers,  and  Tele- 
graphs, so  as  to  embrace  the  entire  range  of  those  topics, 
and  form  complete  treatises  upon  those  important  subjects, 
and  nearly  so  upon  all  the  subjects  treated  ;  we  are  now  en- 
abled to  omit  all  matter  contained  in  the  third  edition  not 
entirely  in  harmony  with  the  plan  of  the  work.  This  matter 
will  be  published  soon,  in  a  separate  volume  of  leading  cases 
and  opinions  upon  the  Law  of  Railways,  with  extensive  notes, 
as  a  supplement  to  the  main  work,  but  sold  separately  to  such 
as  may  desire  it,  whether  with  or  without  the  main  work. 


yiii  PREFACE    TO    THE    FOURTH    EDITION. 

A-  this  edition  is  but  the  carrying  out  of  our  original  pur- 
rd  to  the  third  edition,  by  perfecting  the  treat- 
ment of  each  topic,  so  as  to  embrace  complete  treatises  upon 
each,  and  extending  the  title  so  as  to  give  some  hint  of  what 
the  book  contains;  it  may  be  proper  to  add,  that  the  third 
edition  met  with  a  very  extended  and  rapid  sale,  so  as  to 
prove  more  remunerative  to  the  author  in  two  years  than  in 
the  ten  preceding  years.  And  as  the  work  seems  now  to 
have  obtained  the  very  general  confidence  of  the  profession 
at  home,  and  as  the  author  has  received  many  very  flattering 
testimonials  in  regard  to  the  last  edition,  while  abroad,  he 
trusts  no  apology  will  be  required  for  quoting  a  brief  extract 
from  that  of  the  Lord  Chief  Justice  of  England,  especially 
as  it  breathes  so  much  of  that  cordial  fraternal  spirit  towards 
hi-  American  brothers,  engaged  in  the  same  great  field  of 
labor,  and  which  it  will  be  the  pleasure  of  every  noble-hearted 
and  cultivated  patriot,  in  this  country,  to  reciprocate. 

Bis  Lordship  says,  in  regard  to  the  Wills  and  Railways: 
••  1  Laving  now  read  the  books  through,  I  beg,  in  offering  you 
my  most  sincere  thanks  for  your  gift,  to  add  the  expression 
of  my  admiration  for  the  great  learning,  research,  and  power 
of  reasoning,  displayed  in  these  valuable  treatises.  They 
must.  I  am  convinced,  prove  standard  works  on  the  subjects 
of  which  they  treat,  and  must  prove  a  very  valuable  addition 
to  the  juridical  literature,  which,  I  am  happy  to  think,  is 
common  to  our  two  countries.  America  may  indeed  be 
proud  of  her  jurists,  who  have  done  so  much  for  the  pro- 
motion ot"  legal  science." 

We  cannol  but  feel  some  well-grounded  trust,  that  the 
tit  edition  will  be  found  useful  to  the  general  practi- 
tioner, who  desires  to  have  always  at  hand,  in  compact  form, 
the  synopsis  of  the  law  upon  the  many  important  topics 
discussed  in  the-  two  volumes.  And  to  that  end  we  have 
done  all  in  our  power  to  make  the  book  as  complete  as 
'!<••     There  will,  no  doubt,  be  found  some  errors  and 


PEEFACE   TO    THE    FOURTH    EDITION.  IX 

defects,  since  it  is  not  possible  to  exclude  all  errors  from  so 
extended  and  complicated  a  work,  or  to  have  it  contain  all 
that  every  one  would  most  desire.  If  it  shall  prove  a  rea- 
sonably successful  accomplishment  of  the  author's  purpose, 
it  will  be  a  sufficient  reward  for  a  large  amount  of  labor, 
through  many  years,  which  no  faithful  book-maker,  in  the 
profession  of  the  law,  can  reasonably  expect  to  have  fully 
compensated  in  any  other  mode. 

I.  F.  R. 
Boston,  Sept.  1,  1869. 


PREFACE   TO   THE   FIRST   EDITION. 


This  work  was  undertaken  with  the  purpose  of  supply- 
ing, whal  seemed  to  the  writer  a  want,  if  not  a  necessity,  to 
the  profession  in  this  country;  a  book  upon  the  law  of  rail- 
.  which  should  present,  within  reasonable  compass,  and 
in  a  properly  digested  form,  the  whole  law  upon  the  subject, 
both  English  and  American.  No  treatise  had  attempted  this. 
Ami  the  attempt  has  confirmed  the  expectation,  that  the 
accomplishment  of  such  an  undertaking  would  be  attended 
with  labor  and  perplexity. 

It  seems  desirable  that  such  a  work  should  present  every 
ease  which  has  been  decided  in  both  countries,  in  such  a  form 
as  to  make  the  point  of  decision  plain  and  obvious,  and  at 
the  same  time  not  convert  a  treatise  into  a  mere  digest.  A 
mere  treatise,  too,  upon  the  principles  involved  in  the  sev- 
eral departments  of  the  law  brought  under  discussion  in  such 
a  work,  would  he  of  little  benefit  except  to  the  student. 
This,  too,  will  be  found  in  the  approved  treatises  already 
published  upon  these  several  subjects.  On  the  other  hand, 
a  digesi  of  the  cases  upon  any  plan,  however  comprehen- 
sive or  philosophical  might  be  the  analysis,  would  appear 
an  unsatisfactory  labor  when  we  have  already  so  much  of 
the  kind. 

It  is  the  mdcavor  of  this  undertaking  to  combine  the  two 

in  Buch  a  manner  as  to  render  the  work  intelligible,  and  in- 

in  exposition  of  the  principles  involved;  and  at 

the  Bame  time  present  a  thorough  analysis  and  digest  of  all 


PREFACE   TO    THE    FIRST    EDITION.  XI 

the  important  cases  upon  the  subject,  in  such  a  manner  as 
to  enable  the  reader  at  once  to  know  the  result  of  all  the 
decisions  upon  the  several  topics  discussed. 

The  plan  of  the  work  is  mainly  new,  and  the  effort  has 
been  to  render  it  natural,  simple,  and  comprehensive.  The 
manner  of  arranging  the  heads  to  the  several  subdivisions 
has  been  adopted  chiefly  with  a  view  to  enable  the  profes- 
sion to  find  at  once  whatever  the  work  contains  upon  any 
topic  or  question. 

How  far  the  design  of  the  author  has  been  accomplished, 
he  submits  to  the  indulgent  judgment  of  his  professional 
brethren  who  have  hitherto  shown  him  so  much  forbear- 
ance. In  justice  to  himself,  perhaps  it  should  be  here 
mentioned,  that  the  work  has  been  prepared  under  some 
disadvantages,  from  the  constant  pressure  of  official  duties 
which  could  not  be  required  to  accommodate  themselves,  in 
any  respect  to  the  demands  of  this  subordinate  labor.  It 
has  thus  happened,  that,  although  a  considerable  time  has 
elapsed  since  the  work  was  seriously  taken  in  hand,  it  has 
of  necessity  been  done,  to  a  great  extent,  at  such  intervals, 
more  or  less  extensive,  as  circumstances  would  allow  the 
writer  to  command,  and  always  in  haste. 

If  some  mistakes  should  be  discovered,  therefore,  and 
some  graver  faults  even,  it  is  hoped  that  the  profession  will 
bear  with  them  ;  with  the  assurance  that,  if  the  work  should 
be  found  of  sufficient  importance  to  require  another  edition, 
they  will  be  corrected  ;  and  that,  if  no  such  demand  should 
be  made,  the  work' has  probably  received  as  much  labor  as 
it  deserves. 

I.  F.  R. 

Windsor,  Vt.,  Nov.  20,  1857. 


SUMMARY    OF     CONTENTS. 


PART   I. 

The  Law  of  Preliminary  Associations 5-52 

PART   II. 

The  Law  of  Corporations 53-229 

PART  III. 

The  Law  of  the  Right  of  Way;  Eminent  Domain,  etc.     .     .     231-400 

PART   IV. 

The  Law  of  Contracts  as  to  Railway-Construction  ;  Tolls,  etc.     401-469 

PART   V. 

The  Law  of  Responsibility  for  Fires  ;    for  Injuries  to  Do- 
mestic Animals;   for  Fences 470-524 

PART   VI. 

The  Law  of  Agency  as  to  Railways 525-655 

PART   VII. 

The  Law  of  Mandamus  axd  other  Prerogative  Remedies  .     .     656-706 

Appendix   of   Later   Cases 707-719 

Regulation  of  Traffic  on  Interstate  Railways  by  Congress  721-729 


ANALYSIS   OF    CONTENTS. 


\CF"  The  citations  to  other  portions  of  the  work  are  thus  expressed,  §  —  pi.  —  n. — ,  and  the  §§  are  placed 
in  the  inner  margin  of  the  pages,  for  convenience  of  reference.  The  paging  of  the  fourth  edition  is 
preserved  in  this  edition  at  the  bottom  of  the  page. 


CHAPTER  I. 


INTRODUCTION. 


PAGE 

1.  Origin  of  railways  in  England 1,  2 

2.  First  built  upon  one's  own  land,  or  by  special  license  from  the  owner     .     .  2 

3.  Questions  in  regard  to  private  railways 2 

4.  Railways  in  America,  public  grants 3 

5.  Use  of  steam-power  on  railways 3 

6.  The  franchise  of  a  railway  not  necessarily  corporate  nor  unassignable    .     .  4 


PART    I. 
THE  LAW   OF   PRELIMINARY  ASSOCIATIONS. 

CHAPTER  II. 

PUBLIC   RAILWAYS   AS    CORPORATIONS. — PRELIMINARY   ASSOCIATIONS. 

SECTION    I. 
MODE    OF    INSTITUTING    RAILWAY    PROJECTS. 

1.  Subscribers'  Associations  in  England 7 

2.  Subscribers  bound  by  subsequent  charter 7,  8 

3.  Issue  and  registry  of  scrip  certificates 8 

4.  Original  subscriber  liable  to  unregistered  purchaser 8 

5.  Holders  of  scrip  entitled  to  registry 8,  9 

6.  Preliminary  associations  not  common  in  this  country 9 

7.  Petitioners  for  incorporation  file  plan  and  surveys 9,  10 

8.  Present  English  statutes 10 

9.  Preliminary  associations  may  be  registered 10 

10.  Not  now  held  responsible  as  partners  in  England 10 


KVi  AN  UiYSIS   OF   CONTENTS. 

SEI  TION    II. 

I,,,      PROMOTERS    tfOl     BINDING    AT    LAW    UPON    THE    COMPANY. 

untry  promoters  only  bind  themselves  and  their  associates       .     .  11,  12 

.  re  nol  enforceable  by  company 12,  13 

a  decree  in  equity  setting  up  the  contract,  the  com- 
.  ;  I  to  have  adopted  it 13 

SECTION    III. 

R.8     rO    THE    PRELIMINARY    ASSOCIATION    INTER    SESE. 

■    f  directors  limited  by  terms  of  subscription 13,14 

on  not  binding  until  preliminaries  arc  complied  with 14 

how  far  controlled  by  oral  representations  of  directors      ...  14 

iused  from  paying  calls  by  contract  of  directors     ...  14 

cepl  by  terms  of  agreement 14,15 

.    terally  make  provision  for  expenses 15 

■  obtains  shares  without  executing  the  deed  not  bound  to  con- 
tribute 15 

nil  i  icrship  subsists  between  subscribers    .     .     .  15-17 

SECTION  IV. 

PRAI    I-    OF    THE    PROMOTERS   ADOPTED    BY    THE    COMPANY. 

lility  may  lie  transferred  with  assent  of  creditors,  but  not  unless  that 

■  table 16-18 

rovisional  company  to  contract  limited  by  statute     .     .     .     .17,18 

SECTION  V. 

OP    Till.    PROMOTERS    MAY    BE    ADOPTED    BY    THE    COMPANY. 

me  the  benefit  without  the  burden 18 

SECTION  VI. 

'•  I   '   N     llll.    PROMOTERS    AND    OPPOSERS    OP    A    BILL    FOR    THE 
•  II  \UI  l.i:    OF    A    RAILWAY. 

11  ■  -  numerous 19 

ipinion  in  the  case  of  Vauxhall  Bridge  Col     '.'.'.'.'.     !  19-21 

section  vn. 

COHTRA<   I-    OF    nil,    PROMOTERS    KNFORCED    IN   EQUITY. 

.  Grand  Junction  Railway 22-24 

SECTION    VIII. 

"     THE    PROMOTERS    BINDING    UPON    THE    COMPANY   AT    LAW. 

in 25  26 


ANALYSIS    OP    CONTENTS.  XVU 


SECTION  IX. 

WHAT  CONTRACTS  BETWEEN  THE  PROMOTERS  OF  RAILWAYS  AND  OTHERS  WILL  BE 
ENFORCED,  EITHER  IN  LAW  OR  EQUITY,  AGAINST  THE  CONTRACTING  PARTIES 
OR    THE    COMPANY. 

1.  Contract  to  take  land  of  opposing  party 26,27 

2.  Contract  prejudicial  to  the  public 27 

SECTION  X. 

COURTS  OF  EQUITY  WILL  ENFORCE  CONTRACTS  WITH  THE  PROMOTERS. 

1.  Bona  fide  contract,  not  evading  statute,  valid 27,  28 

n.  8.  Statement  of  English  cases 28-40 

SECTION  XI. 

SUCH    CONTRACTS    ENFORCED    WHERE    THE    RAILWAY    IS    ABANDONED. 

1.  Where  a  certain  sum  is  to  be  paid  to  quiet  opposition 29-35 

2.  Merely  provisional  contracts  not  always  enforced 36-40 

SECTION  XII. 

PRACTICE    OF    COURTS    OF    EQUITY    IN    DECREEING    SPECIFIC   PERFORMANCE. 

1.  Mutual  arrangements  protected  in  chancery 41 

2.  But  decisions  are  conflicting.     In  cases  of  doubtful  right,  plaintiff  is  remit- 

ted to  common  law  remedies 41,  42 

n.  2.  Statement  of  cases 41-45 

SECTION  XIII. 

SPECIFIC    PERFORMANCE    IN    COURTS    OF   EQUITY. 

Object  of  courts  to  compel  good  faith  when  a  definite  contract  is  made     .     .     .  43-46 

SECTION  XIV. 

COURTS    OF   EQUITY    MAY    RESTRAIN    A    PARTY   FROM    OPPOSITION    OR    PETITION    IN 

PARLIAMENT. 

1.  Such  cases  not  common  in1  practice 46,  47 

2.  Such  cases  not  readily  recognized 47 

SECTION  XV. 

CONTRACTS    TO   WITHDRAW   OPPOSITION   TO    RAILWAY   PROJECTS    AND    TO   KEEP  THIS 
SECRET,    AGAINST    SOUND    POLICY,    AND    WOULD    SEEM    TO    BE    ILLEGAL. 

1.  Principle  of  foregoing  decisions  obscure 47,  48 

2.  Not  adopted  in  this  country  unless  terms  inserted  in  charter 48,  49 

3.  Recent  change  of  views  in  English  courts 49 

3-5.  Statement  of  late  .case  in  which  principle  of  Edwards  v.  Grand  Junction 

Railway  is  doubted 49 

6.  Act  of  incorporation  should  not  be  varied  by  oral  testimony 49,  50 

YOL.   i.  b 


I 


xviii  ANALYSIS    OP    CONTENTS. 

t8  to  quiet  opposition  not  favored  in  this  country 50 

,nd  American  decisions r\  A 

,••,*:,  'j '  eo 

f  legislature  not  exposed  to  be  misled o^ 


I 'ART  II. 
THE  LAW  OF  CORPORATIONS. 

CHAPTER  III. 

RAILWAYS   AS   CORPORATIONS. 

SECTION  l. 

ORIGIN    AM>    DIFFERENT    CLASSES   OF   CORPORATIONS. 

porations  dates  very  early 55 

2.  The  different  kinds  of  corporations,  sole  and  aggregate 55,56 

8.  This  work  treats  chiefly  of  aggregate  joint-stock  corporations  .     ....        56 

rporationB  are  eitl  iastical  or  lay 56,57 

are  divided  into  eleemosynary  and  civil  corporations 57 

porations  are  public  or  private 57 

ations  where  stock  is  private  property 57 

iic  corporations  where  stock  is  owned  and  management  retained  by  the 

58 

ect  tin'  private  character  of  a  corporation  that  the  State  or 

the  United  States  own  a  portion  of  the  stock 59,60 

tinction  between  corporations  and  partnerships.     The  latter  defined        60,  61 
11.  Farther  definition  of  the  distinction  between  corporations  and  partnerships        61 

SECTION    II. 

now  CORPORATIONS  ARE  CREATED. 

1.  Corporations  created  by  grant  <>t'  the  sovereignty.    This  may  be  proved  by 

implication  or  by  presumption 62 

-    Th(                     v  may  establish  corporations  hy  general  act,  or  by  delega- 
tion or  inoculation       62,  63 

•  forms  of  defining  a  corporation 63 

a  of  corporations  restricted  to  State  creating  them   .     .        63 

irs  and  agents  in  other  States 63,64 

d.  10.  But  cannot  properly  transfer  its  entire  business  to  another  State  .     .     .        64 
ited  at  one  place  cannot  establish  a  branch  at  another   ...        64 

SECTION    III. 

Till     CONSTITUTION    "i     CORPORATIONS   AND   MODE   OF   PROOF. 

oe  of  the  different  sense  of  the  term  constitution,  as  applied  to  cor- 

'  gg 

may  be  composed  or  constituted  .    ....'.'.'     .'    .'■       65 

n  illustrated  more  iii  detail 65  66 

•Hon   .,f  legislative,  electorial,  and  administrative  assemblies  not 


66 


i  only  act  by  its  name.     Subject  discussed'     .'     .'     .'     .'     '.     '.        66 


"\  ANALYSIS   OP   CONTENTS.  xix 

5.  Any  deviation  from  the  name  allowed,  if  the  substance  and  sense  be  pre- 

•  served 67 

6.  Courts  of  equity  will  not  restrain  corporations  from  applying  for  enlarged 

powers 67 

7.  Change  of  constitution.     Effect  of  change  of  name 67,68 

8.  Courts  of  equity  will  enjoin  a  new  corporation  from  assuming  the  name  of 

one  of  established  credit 68 

9.  Promissory  note  payable  to  A.  B.,  treasurer  of  a  corporation,  may  be  sued 

in  the  name  of  A.  B.     Promissory  note  for  subscription  waives  condi- 
tion   •     •     •         68 

10.  Corporation  may  be  estopped  to  deny  its  existence.    How  described  .     .        68,  69 

11.  How  the  existence  and  nonexistence  of  corporations  may  be  proved  .     .     .         69 

12.  Party  to  written  contract,  payable  to  corporation,  cannot  deny  corporate 

existence 69 

13.  Proof  of  corporation  in  fact  sufficient  in  all  cases 69 

CHAPTER    IV. 

PROCEEDINGS   UNDER   THE   CHARTER. 

SECTION     I. 
ORGANIZATION    OF    THE    COMPANY. 

1.  Conditions  precedent  must  be  performed 70 

2.  Stock  must  all  be  subscribed,  ordinarily 71 

3.  Charter,  location  of  road,  condition  precedent 71 

4.  Colorable  subscriptions  binding  at  law 71,  72 

5.  Conditions  subsequent,  how  enforced 72 

6.  Stock  distributed  according  to  charter 72 

7.  Commissioners  must  all  act 72,  73 

8.  Defect  of  organization  must  be  pleaded  specially 73 

9.  Question  cannot  be  raised  collaterally 73 

10.  Records  of  company,  evidence 73,  74 

11.  Membership  how  maintained 74 

12.  By  subscription  and  transfer  of  shares 75 

13.  Offers  to  take  shares  not  enforced  in  equity,  and  may  be  withdrawn  ...        75 

SECTION    II. 

ACCEPTANCE    OF    CHARTER,    OR    OF    MODIFICATION    OF    IT. 

1.  New  or  altered  charter  must  be  formally  accepted 75,  76 

2.  Subscription  for  stock  sometimes  sufficient 76 

3.  Inoperative  unless  done  as  required 76 

4.  Assent  to  beneficial  grant  presumed 76 

5.  Matter  of  presumption  and  inference 76 

6.  Organization  or  acceptance  of  charter  may  be  shown  by  parol      ....         76 

7.  Corporators  assenting  are  bound 76,  77 

8.  Charter  subject  to  recall  until  accepted 77 

SECTION    III. 

ORDINARY    POWERS. CONTROL    OF    MAJORITY. 

1.  Ordinary  franchises  of  railways 77,78 

2,  3.  Majority  control,  unless  restrained 78 

4.  Cannot  change  organic  law 78,  79 

5.  Except  in  the  prescribed  mode 79 

6.  Cannot  accept  amended  charter 79 

7.  Or  dissolve  corporation 79 


xx  ANALYSIS   OF   CONTENTS. 

nlarged  powers    ■•■■••■••    ••.;*••    •  JJJ 

•  ,  quitj  "ill  ii"!  restrain  the  use  oi  their  funds  for  that  purpose    .  HO 

.,  n  canal  into  railway 80 

B  losl  by  acquiescence 81 

i  i  our  plaintiff)  fatal 81 

.i  public  trus! 81»  82 

n tamed  l>v  rival  interest °z 

\   will  aot  restrain  the  majority  l'rom  winding  up  unless  for 
82 

SECTION    IV. 

MEETINGS    OF    COMPANY. 

1     M                       ial  and  general 83 

musl  be  notified  as  required 83 

ind  important  matters,  named  in  notice 83,  84 

al  meetings  need  not  name  business 84 

turned  meeting,  still  the  same 84,85 

-  by  meetings,  by  directors,  by  agents 85 

esume  meetings  held  at  proper  place 85 

-  1  rerj  shareholder  may  vote,  but  not  by  proxy 85 

eral  owner  3  entitled  to  vote  and  act  as  member      ....       85,86 

-  icl  as  owners 86 

i       1  ;   iration  issue  stock  in  the  name  of  B.  to  secure  a  debt,  which  it 

to  A.,  no  one  can  vote  upon  the  same 86 

i  collateral  security  cannot  be  changed 86 

SECTION    V. 

ELECTION    OF    DIRECTORS. 

I.  6  general  meeting,  or  upon  special  notice 87 

nay  restrain  their  authority 87,88 

apany  bound  by  act  of  directors,  defacto 88 

l    Act  of  officer  defacto,  binds  third  persons 88,89 

SECTION    VI. 

MEETINGS    OF    DIRECTORS. 

I    All  should  be  notified  to  attend 89 

-  A  ,    timed  meeting  still  the  same '.'.'.!  90 

urd  not  required  to  be  kept  full '.'.'.  90 

'    Usurpai   >ns  tried  by  shareholders  or  courts     ......    '.    '.    '.    '.  '.        90 

11  often  excuse  irregularities .'.'.'.'.  90  91 

lajority  valid '  qi 

I  proceedings,  evidence .    .    ,  91  92 

lion  must  be  taken  at  a  formal  meeting    .    '.    '.    '.    '.    \    .    \    .  .     '92 

SECTION    VII. 

"1    M.IFICATION    OF    DIRECTORS. 

ontractor  and  director.  09 

•-'    May  be  their  banker  and  director  .  qo 

lirector  by  virtue  of  stock  mortgaged     '. 4 

J{;",kr  -•""■  "ill  not  vacate  office  qq 

pelted  to  fill  vacancies  in  board 93 


ANALYSIS   OF   CONTENTS.  XXI 

CHAPTER    V. 

PREROGATIVE    FRANCHISES. 

1.  Control  of  internal  communication  in  a  state  a  prerogative  franchise      .     .         94 

2.  Such  a  grant  confers  powers  pertaining  exclusively  to  sovereignty,  as  tak- 

ing tolls,  and  the  right  of  eminent  domain 94 


CHAPTER    VI. 

BY-LAWS   AND    STATUTES. 

SECTION     I. 
POWER    OF   MAKING    BY-LAWS    OR    STATUTES. 

1.  May  control  conduct  of  passengers 95 

2.  Must  be  reasonable  and  not  against  law 95,  96 

3.  Power  may  be  implied,  where  not  express 96 

4.  Not  required  to  be  in  any  particular  form  unless  by  special  provision     .     .         96 

6.  Model  code  of  by-laws  framed  by  board  of  trade  in  England 97 

7.  Company  may  demand  liigher  fare  if  paid  in  cars 98 

8.  Public  statutes  control  by-laws 98,  99 

9.  Cannot  impose  penalty 99 

10.  Cannot  refuse  to  be  responsible  for  baggage 99 

11.  Statutes  operate  upon  members  from  promulgation ;    upon  others,  from 

knowledge  of  the  same 99 

12.  Regulations,  for  accommodation  of  passengers,  must  yield  to  the  right  of 

others  to  be  carried 99,  100 

SECTION  II. 

BY-LAWS   REGULATING    THE    USE    OF    STATIONS   AND    GROUNDS. 

1.  May  exclude  persons  without  business 101 

2.  May  regulate  the  conduct  of  others 101 

3.  Superintendent  may  expel  for  violation  of  rules 101,102 

4.  Probable  cause  will  justify 102 

5.  In  civil  suit  must  prove  violation  of  rules 102-104 

6.  Regulation  of  stations  and  traffic  by  means  of  injunction.     Equality  of 

charges 104 

7.  Through  trains  will  not  be  required  unless  reasonably  necessary  for  public 

accommodation 104 

8.  Mode  of  enforcing  search  warrants  in  freight  stations 104 

9.  The  right  of  railway  companies  to  exclude  persons  having  no  business  from 

their  stations 104,  105 

10.  Company  bound  to  maintain  platforms  about  passenger  stations  in  safe 

condition 105 

SECTION   III. 

BY-LAWS    OR    RULES,    AS    TO    PASSENGERS. 

1.  By-laws  as  statutes 106 

2.  As  mere  rules,  or  regulations 106,  107 

3.  Requiring  larger  fares  for  shorter  distances 107 

4.  Requiring  passengers  to  go  through  in  same  train 107-110 

n.  5.  Discussion  of  cases  in  point .107-110 


XX  11 


ANALYSIS   OF   CONTENTS. 


nger  by  company's  servants m 

ompanj  responsible -^ 

7    i        •    ny  liable  for  act  of  servant '    '    '    '  111   112 

iust  be  published *  '  ,,« 

luding  merchandise  from  passenger  trams      . '19  1U 

nation  between  fares  paid  in  cars  and  at  stations 114 

of  force 114  11s. 

may  enforce  rules  of  compaoy     •    ■     •.    •    ■    •    •    •    •   X1*>  "£ 
, ,    ,  ale  againsl  pass,  ager,  when  in  fault  themselves        115 

f  the  company  to  tariff  of  fares  how  presumed 110 

ound  ofcolor •     •    •     •  * 

,ns  and  duties  of  street-railways 110,110 


CHAPTEB   VII. 

CAPITAL   STOCK. 
SECTION  T. 

LIMITATIONS. 

-  of  shareholders 11? 

not  the  limit  of  property 117 

...    unless  on  special  license  of  the  legislature 117 

SECTION  II. 

HDITIONS    PRECEDENT,    WHICH    THE    1'UBLIC    AUTHORITIES    MAT    ENFORCE. 

I    Stock,  if  limited,  must  all  be  subscribed 118 

ments  at  time  of  subscription        118,  119 

section  m. 

SHAKES    PERSONAL   ESTATE. 

ional  estate' at  common  law 119,  120 

•  growing  out  of  land,  or  goods,  wares,  and  merchandise  .     .       120 
ated  such  shares  as  real  estate 120,  121 


CHx\PTER  VIII. 

TRANSFER   OF   SHARES. 

SECTION  I. 

RESTRICTIONS    UPON    TRANSFER. 

rter  to  be  observed 122 

!  directory  merely 123,  124 

-•'II. -in  restrictions  void 121,125 

1  upon  the  indebtedness  of  the  owner  is  valid 125,'  126 

implied '  126 

•'    w<  >-  wrongfully  refused,  vendee  may  recover  value  of  the 

126 


ANALYSIS   OF    CONTENTS.  XXiii 

SECTION   II. 

CONTRACTS    TO    TRANSFER    STOCK. 

1.  Transfer  under  English  statutes.     Registered  companies 127 

2.  Contracts  to  transfer  stock  valid,  where  bona  fide, 127,  128 

3.  Vendor  must  have  the  stock,  when  due 128 

n.  3.  Vendor  must  procure  the  consent  of  directors,  where  requisite  .     .     .    127,  128 

4.  Eorce  of  usages  of  stock  exchange 129,  130 

5.  Company  will  reform  their  registry  at  its  peril 130 

6.  10.  Company  may  compel  one  to  accept  shares  on  contract 131,  132 

7.  Stock  standing  in  joint  names  belongs  to  survivors       131 

8.  Mode  and  effect  of  correcting  registry 131 

9.  If  the  company  vary  the  contract,  specific  performance  will  be  denied   .     .       131 

10.  Closing  contracts  by  offer  and  acceptance 131,  132 

11.  Eorm  of  transfer.     Two  may  join  in  one  transfer 132 

SECTION  III. 

INTERVENING    CALLS    OR   ASSESSMENTS. 

1.  Vendor  must  pay  calls,  if  that  is  requisite  to  pass  title 132,  133 

2.  Generally  it  is  matter  of  construction  and  inference 133 

n.  2.  Calls  paid  by  vendor  after  executing  transfer 133,  134 

SECTION  IV. 

TRANSFER  BY  DEED  IN  BLANK. 

1  and  2.  Blank  transfer  formerly  held  invalid  in  England 134,  135 

3.  Rule  different  in  America 135 

4.  Deed  executed  in  blank  and  filled  by  procuration  valid ,  135 

SECTION   V. 

SALE   OF   SPURIOUS    SHARES.  —  RULES   OF   STOCK   EXCHANGE. 

1.  Vendor,  who  acts  bona  fide,  must  refund  money        136 

3.  No  implied  warranty  in  such  case,  which  will  entitle  the  vendee  to  special 

damage 137 

4.  and  n.  4.  Rule  of  the  stock-exchange,  made  after  the  sale,  not  binding  upon 

parties.     How  far  such  rules  bind  parties 137,  138 

n.  1.  Discussion  of  the  extent  of  implied  warranty 136 

SECTION   VI. 

READINESS    TO    PERFORM. CUSTOM    AND    USAGE. 

1.  Vendor  must  be  ready  and  offer  to  convey 138 

2.  Vendee  must  be  ready  to  pay  price ]38 

3.  General  custom  and  local  usage 139-141 

4.  The  party  taking  the  initiative  must  prepare  the  writings 141 

n.  3.  Oral  evidence  to  explain  memoranda  of  contract 139,  140 

SECTION   VII. 

DAMAGES. SPECIFIC    PERFORMANCE. 

1.  Damages,  difference  between  contract  price  and  price  at  time  of  delivery   .      142 

2.  Equity  will  decree  specific  performance  of  contract  for  sale  of  shares.     .   142,  143 


vuv  \N  IlLYSIS  of  contents. 

SECTION  \  III. 

gp]  OIFH     I'l  RFOBMANCE. 

mance  de<  i  the  sendee ||| 

early  cases *** 

-  may  transfer  them •     •     •     ■     •  i*j? 

ific  performance  where  not  in  the  power  of  the  party  .  14D 

SECTION  IX. 

MM  -ll  I     IM I     CO   INDEMNITl     AGAINST    FUTURE    CALLS. 


.       146 
.       146 

146,  147 

147,  148 
.  149 
.       150 

150 


entitled  to  indemnity,  on  general  principles     .... 
-  :  ited  in  regard  to  railway  shares     .... 

ed 

jetoi  kholders,  for  the  debts  of  the  company 
nsible  owner  must  respond  to  all  responsibilities      .     . 

i    Bonally 

!■  i>  entitled  to  redeem  on  restoring  the  shares  as  stipulated 
in  \\\>  deed 

SECTION  X. 

I    I  1ST    PRACTICES    TO    RAISE    THE    PRICE    OF    SHARES. 

equity  will  vacate  sales  so  procured 150,151 

Extent  of  redress 151-153 

i    Dividends  declared  when  none  are  earned  will  vacate  sales  and  sub- 

ra  to  indictment 153 

iv  will  not  interfere  where  vendor  acted  bona  fide,,  unless  the  shares 

153,  154 

mpany  liable  in  tort  to  party  injured 154 

a    I11-  Purchasing  Bhares  in  another  company  considered    ....   154,155 
purchaser  of  shares  fraudulently  issued  acquires  same  rights  as 

155 

SECTION    XL 

LIABILITY    "I     '"MPANY    FOR    NOT    REGISTERING    TRANSFERS. 

pany  liable  to  action 155,  156 

ompelled  to  record  transfers  by  mandamus 156 

record  i -tgages  of  shares       156,157 

ue  157 

in/,  most  appropriate  remedy 157,  158 

158 

ancellation  of  an  unregistered  transfer  will  not  affect  the 
158 

SECTION    XII. 

w  II  l.s    0AXL8    BECOME    PERFECTED. 

when  the  Him  i<  assessed,  notice  may  be  given  afterwards        159' 

proper  authority  to  make  calls .'      160 

■*    J  otice  and  of  proof ....  ^ 


ANALYSIS    OF    CONTENTS.  XXV 

SECTION    XIII. 

TRANSFER   BY    DEATH,    INSOLVENCY,    OR    MARRIAGE. 

1.  Mandamus  lies  to  compel  the  registry  of  successor 161 

2  and  8.  In  case  of  death  personal  representative  liable  for  calls     ....    161,  162 

4.  Notice  requisite  to  perfect  the  title  of  mortgagee 162 

5.  Stock  in  trust  goes  to  new  trustees 162 

6.  Assignees  of  insolvents  not  liable  for  the  debts  of  the  company     ....  162 

7.  Effect  of  marriage  of  feme  sole 162 

SECTION  XIV. 

LEGATEES    OF    SHARES. 

1.  Entitled  to  election,  interest,  and  new  shares,  but  not  to  bonds      ....       163 

2.  Shares  owned  at  date  of  will  pass,  although  converted  into  consolidated 

stock 163 

3.  Consolidated  stock  subsequently  acquired  will  not  pass 163 

SECTION    XV. 

SHARES    IN    TRUST. 

1  and  2.  Company  may  safely  deal  with  registered  owner     .......       164 

3.  But  equity  will  protect  the  rights  of  cestuis  que  trust 164 

4,  and  n.  2.  Discussion  of  the  rights  of  cestuis  que  trust  in  stock  certificates  .    165,  166 

SECTION   XVI. 

THE  EXTENT  OF  TRANSFER  REQUISITE  TO  EXEMPT  FROM  CLAIM  OF  CREDITORS. 

1.  How  transfer  of  stock  perfected  as  to  creditors 165,166 

2.  Reasonable  time  allowed  to  record  transfer 166 

3  and  4.  In  some  of  the  states  no  record  required 166,  167 

n.  3.  Question  further  considered 166,  167 

CHAPTER    IX. 

ASSESSMENTS   OR   CALLS. 

SECTION    I. 

PARTY    LIABLE    FOR    CALLS. 

1.  The  party  upon  the  regfster  liable  for  calls 168 

2.  Bankrupts  remain  liable  for  calls 168,  169 

3.  Cestuis  que  trust  not  liable  for  calls  in  law  or  equity 169,  170 

4.  Trustee  compelled  to  pay  for  shares 170 

5.  One  on  registry  may  show  his  name  improperly  placed  there 170 

SECTION   II. 

COLORABLE    SUBSCRIPTIONS. 

1.  Colorable  subscriptions  valid 170,  171 

2.  Directors  may  be  compelled  to  register  them 171,172 

8.  Oral  evidence  to  vary  the  written  subscription  inadmissible 172,  173 


xxv|  ANALYSIS   OP   CONTENTS.     , 

I    R  dence  although  not  made  in  the  time  prescribed 173 

,  nii.il  subscriptions  void 

issued  to  secure  debt  of  company lio 

HON    III. 

MODE   "I     i  M  OBCING    PAYMENT. 

lefinite   stock,   raises  no    implied  promise  to  pay  the 

l 1/4>  *'" 

ti     subscription  implies  a  promise  to  pay  assessments. 

Tfeiture  a  cumulative  remedy 175,176 

ng  new  stock  will  bar  a  suit  against  subscriber,  qucere  .     .   177,178 

it": ■        1'° 

uirements  of  the  charter  and  general  laws  of  the  state,  must  be 

L  in  declaring  forfeiture  of  stock 178,179 

e  must  name  place 179 

s  nol  affected  by  misconduct  of  directors  in  other  matters   179,  180 

lust  be  regular  at  date 1^0 

will  estop  the  party,  often 180 

1"  of  shares 180 

11.  ;  sthe  declared  void,  before  others  can  be  made  to  supply 

ilace 180 


SECTION    IV. 

■   REDITOBS    MAY    COMPEL    PAYMENT    OF    SUBSCRIPTIONS. 

ipany  compelled  to  collect  of  subscribers  by  mandamus 181 

\     iunt  due  from  subscribers,  a  trust  fund  for  the  benefit  of  cred- 

181 

own  the  stock  it  will  be  the  same 182 

7.   A  diversion  of  the  funds  from  creditors  is  a  violation  of  contract  on 

the  part  of  the  company,  and  a  state  law  authorizing  it  invalid    .     .     .  182 

leral  doctrine  above  stated  found  in  many  American  cases  .  182 

10.  Judgmen                   may  bring  bill  in  equity 183 

railways  liable  as  partners,  for  expenses  of  procuring  charter  183 
1  —   Railway  company  may  assign   calls  before  due,  in  security  for  bona  Jide 
debt.     No  notice  required  to  perfect  assignment  against  attachments  or 

183,  184 

SECTION    V. 

CONDITIONS    PRECEDENT    TO    MAKING    CALLS. 

edent  must  be  performed  before  calls    ........      184 

era!  or  subsequent  conditions  not 184-188 

must  all  be  subscribed  before  calls '.    .   188,189 

i   e  defined  by  the  company  as  in  the  charter     .    .     .     .    '  189 

I]  -  tlOl   tO  I  e  reckoned 190 

repeal  conditions  precedent 190   191 

ments  cannot  be  exceeded  for  any  purpose      .....'.    '  191 

to  limit  stock,  corporation  may     ......     '.     '.       191 

II  in  amount  of  stock    ....*.".'.'  192 

SECTION    VI. 

I  MAI     BE    BADE    PAYABLE    BY    INSTALMENTS     .       .       .     192,193 


ANALYSIS   OP   CONTENTS.  XXV11 

SECTION    VII. 

PARTY    LIABLE    FOE    CALLS. 

1.  Subscribers  liable  to  calls 193 

2  and  6.  What  constitutes  subscription  to  a  capital  stock 193,  195 

3.  How  a  purchaser  of  stock  becomes  liable  to  the  company 194 

4.  One  may  so  conduct  as  to  estop  him  from  denying  his  liability      .     .     .     .  194. 

5.  The  register  of  the  company  evidence  of  membership 195 

6.  Subscriptions  must  be  made  in  conformity  to  charter 195 

7.  Transferee  liable  for  calls.     Subscriber  also  in  some  cases 195 

8.  Original  books  of  subscription  primary  evidence 195 

9.  If  lost  secondary  evidence  admissible 196 

10.  What  acts  will  constitute  one  a  shareholder 196 

11.  May  take  and  negotiate  or  enforce  notes  for  subscriptions 196 

12.  But  note  fraudulently  obtained  not  enforceable 196 

13.  Subscriptions  as  executor  distinct  contracts  from  those  in  private  capacity  196 

SECTION   VIII. 

EELEASE    FROM    LIABILITY    FOR    CALLS. 

1  and  2.  Where  the  transfer  of  shares,  without  registry,  will  relieve  the  pro- 
prietor from  calls 197 

3.  Where  shares  are  forfeited  by  express  condition,  subscriber  no  longer  liable 

for  calls 198 

4.  Dues  cannot  be  enforced  which  accrue  upon  shares  after  they  were  agreed 

to  be  cancelled 198 

SECTION    IX. 

DEFENCES    TO    ACTIONS    FOR    CALLS. 

1.  Informality  in  organization  of  company  insufficient 199,200 

2.  Slight  acquiescence  estops  the  party  in  some  cases 200 

3  and  4.  Default  in  first  payment  insufficient 200-202 

5.  Company  and  subscriber  may  waive  that  condition 202 

6.  Contract  for  stock,  to  be  paid  in  other  stock 203 

7  and  8.  Infancy.     Statute  of  limitations  and  bankruptcy 204,205 

9.  One  commissioner  can  give  no  valid  assurance  as  to  the  route 205 

10.  What  representations  matters  of  opinion 205,  206 

SECTION    X. 

FUNDAMENTAL    ALTERATION    OF    CHARTER. 

1.  Will  release  the  subscribers  to  stock 206 

2.  Railway  company  cannot  purchase  steamboats 207 

3.  7.  Majority  may  bind  company  to  alterations,  not  fundamental      .      207-209,  211 

4.  Directors  cannot  use  the  funds  for  purposes  foreign  to  the  organization      .       209 

5.  9.  But  where  the  legislature  or  the  directors  make  legal  alterations  in  the 

charter,  or  the  location  of  the  road,  it  will  not  release  subscribers      209,  210, 

212 

6.  But  if  subscriptions  are  made  upon  condition  of  a  particular  location,  it 

must  be  complied  with 210,  211 

8,  9.  Consideration  of  subscription,  being  location  of  road,  must  be  substan- 
tially performed 211,  212 

10.  Express  conditions  must  be  performed 212,  213 

11.  How  far  alterations  may  be  made  without  releasing  subscribers     ....       214 

12.  It  may  be  done  where  such  power  is  reserved  in  the  charter 214 


xxv;ii  ANALYSIS   OF   CONTENTS. 

wbTcriptions  no,  released  by  subsequent  ones  in  lam.  .     .    . 

,,„„„,  emigrate  into  another  state  i^en  by  legislative  per 


representative  liable  to  same  extent  as  subscriber 214 

'  .! i  i,, •  vnl»...iii<Mit  ones  in  land    - 


|(».\     XI. 
91  BB(  Kl,  noNS   EM  .1  ORB    DATE   OF   CHARTER. 

215 

of  charter  good 215-217 

upon  condition  not  performed 216  217 

a    i    Where  the  condition  is  performed ,•    '    ■ '  91o 

ai    er  to  induce  company  to  build  station     ....      ^jo 

i  condition,  an  offer  merely .     ....     •     •     •     •     •     •  • 

titiona)  8ul                 bakes  effecl  upon  performance  of  the  condition  .      &\xs 

6    How  far  commissioners  may  annex  conditions  to  subscription  .     .     .     .  .      £io 

tions  void,  if  fraudulent  as  to  company zio,  zi» 


SECTION    XII. 

-I   BSl  KIl'TION    UPOK     SPECIAL   TERMS. 

ble  in  money 219 

ions  al  a  discount,  not  binding o'iq  oon 

n.  2.  Contr  ise  subscriptions  not  binding oon  wi 

tions  before  and  after  organization '  ~d\ 

may  accept  conditional  subscriptions 221 

Lge  in  Alabama 221 

i.    True  rule  to  be  deduced  from  all  the  cases ■      ^1 

ie  on  par  values ^' Hon 

of  maintaining  them _ ■      222 

ipposite  course  on  commercial  fair  dealing 222,223 

irporation  stipulate  to  pay  interest  on  stocks 223 

rtiflcate  of  stock  is  not  thereby  rendered  inoperative  for  legitimate 
purposes 


223 


SECTION    XIII. 

[TABLE    RELIEF    PROM    SUBSCRIPTIONS    OBTAINED    BY    FRAUD. 

1.  Substantial  mil  tions  in  obtaining  subscriptions  will  avoid  them  .      224 

natantial   misconduct  of  the  directors,  in  the  matter,  they 

aloni  225 

asonable  examination  of  papers  referred  to 
■I  mbtful  points.     But  no  relict'  will  lie  granted,  where  there  is  no 

I,  or  intentional  misrepresentation 225,226 

-  cannot  make  profit  for  themselves 226 

SECTION    XIV. 

'"CM  I  I  IM     OJ     BHARES.  — RELIEF    IN    EQUITY. 

•<tnt<<  must  be  strictly  pursued 226 

■   forfeiture 226 

.  at  t:tll  market  value 227 

tutes 227 

i  all  requisite  steps  were  pursued    ....  227 


ANALYSIS    OP    CONTENTS.  XXIX 

SECTION    XV. 

EIGHT    OF    COKPOKATORS    AND    OTHERS    TO    INSPECT    BOOKS    OF    COMPANY. 

1.  May  inspect  and  take  minutes  from  books 227,  228 

2.  Discussion  of  the  extent  to  which  such  books  are  evidence 228 

3.  For  what  purposes  such  books  are  important  as  evidence 228,  229 

4.  This  will  not  embrace  the  books  of  proceedings  of  directors 229 

5.  Party  claiming  to  be  shareholder  may  inspect  register 229 

6.  Allowed  when  suit  or  proceedings  pending 229 

7.  Party  may  have  aid  in  the  inspection 229 


PART    III. 

THE   LAW   OF   EIGHT   OF  WAY,   EMINENT  DOMAIN.      . 
CHAPTER    X. 

RIGHT    OF   WAY   BY   GRANT. 

SECTION    I. 
OBTAINING    LANDS    BY    EXPRESS    CONSENT. 

1.  Leave  granted  by  English  statute 233 

2.  Persons  under  disability 234 

3.  and  n.  2.     Money  to  take  the  place  of  the  land '  .     .     .     .  234 

4.  Consent  to  pass  railway 234 

5.  Duty  of  railway  in  all  cases 234 

6.  License  to  build  railway.     Extent  of  duration 235 

7.  Company  bound  by  conditions  in  deed 235 

8.  Parol  license  good  till  revoked 235,  236 

9.  Sale  of  road  no  abandonment 236 

10.  Deed  conveys  incident ;  not  explainable 237 

11.  One  cannot  derogate  from  compulsory  grant 237 

12.  But  this  does  not  apply  to  accidental  incidents 237,  238 

13.  Case  in  N.  Y.  Court  of  Appeals  somewhat  at  variance  with  the  preceding 

cases 238 

14.  A  municipal  corporation  may  be  bound  by  implied  contract  in  the  grant  of 

land,  so  as  not  to  be  at  liberty  to  recede  from  it 238 

15.  A  mere  agreement  to  sell,  although  in  writing,  will  not  justify  the  company 

in  entering  upon  the  land,  or  defeat  proceedings  under  the  statute  to 
recover  damages  for  taking  the  land 239 

SECTION  II. 

SPECIFIC    PERFORMANCE    IN    EQUITY. 

1.  Contracts  before  and  after  date  of  charter 239 

2.  Contracts  where  all  the  terms  not  denned 239,  240 

3.  Contracts  for  land  umpire  to  fix  price 240 

4.  Where  mandamus  also  lies 240 

5.  Contracts  not  signed  by  company 240 

6.  Where  terms  are  uncertain 240,  241 


xxx  ANALYSIS   OF   CONTENTS. 

241 
mpanj  an  option ^   242 

l>\   liotli  parties ■      •     •     ■  '  > 

I  ,o  construction  of  highways  may  be  enforced  at  the  suit  of^  ^ 

performance  on  the  ground    '  ^ 

;  ,„;,  in  „„.  final  decree'make  the  price  a  charge  on  the 
land  eclared  al  first 

CHAPTER    XI. 

KM  I  MAT     DOMAIN. 

SECTION   I. 

G  BNEK  \I.    PRINCIPLES. 

1    Definition  of  the  right |45 

on ,:  :(  'i 

\  attribute  of  sovereignty '  T,,L 

ignition ^47 

nutations  upon  its  exercise £|7 

principally  in  th<                •  j™ 

mpensation -■*>>  -™ 

f*° 

and  11.  Its  exercise  in  rivers,  above  tide-water -^48 


SECTION    II. 
TAKING    LANDS    IN    [NVITUM. 

nit  requisite 249 

ation  must  be  made 250 

sequential  damages 250 

•  Mich  liability 250 

strictly  construed 250,  251 

iwer  to  take  lands 251,  252 

courts  of  equity 252 

ruction  in  American  courts 252,253 

astruction 253 

I  by  company 253 

rani 254 

12    l)i  the  House  of  Lords 254 


SECTION  III. 

DITIONS    PRECEDENT. 

'  must  be  complied  with 255 

d  in  petition 255,  256 

i   impany 256 

ition  in  the  land  office  is  notice  to  subsequent  purchasers  .     .      256 
edand  confirmed  by  the  court  the  owner  is  en- 

n 256 

■   the  land 256,  257 

i-  payable  in  land  without  compensation,  a  court  of  equity  will 

;  Hunt 257 


ANALYSIS    OF    CONTENTS.  XXXI 

SECTION   IV. 

PRELIMINARY    SURVEYS. 

1.  May  be  made  without  compensation 258 

2.  Company  not  trespasser 258 

3.  For  what  purposes  company  may  enter  upon  lands 258,  259 

4.  Company  liable  for  materials 259 

5.  Right  to  take  materials 259 

6  and  7.  Location  of  survey 260 

SECTION  V. 

POWER    TO    TAKE    TEMPORARY    POSSESSION    OP    PUBLIC    AND    PRIVATE    WATS. 

1.  The  railway  company  may  take  possession  of  public  or  private  ways,  in 

building  their  works.     Responsibility 260 

2.  Remedy  under  the  statutes,  unless  special  damage 260 

3.  Party  excavating  highway  in  building  sewer  and  having  restored'  it,  no 

further  responsible       261 

SECTION   VI. 

LAND    FOR    ORDINARY    AND    EXTRAORDINARY    USES. 

1.  By  English  statute  may  take  land  for  all  necessary  uses 261,  262 

2.  Companies  have  the  same  power  here 262 

3.  So  also  of  companies  connecting  at  state  lines 262,  263 

SECTION   VII. 

TITLE    ACQUIRED    BY    COMPANY. 

1.  Company  have  only  right  of  way 264 

2.  Can  take  nothing  from  soil  except  for  construction 264,  265 

3.  Deed  in  fee  simple  to  company 265 

4.  For  what  uses  may  take  land 266,  267 

5.  Right  to  cross  railway,  extent  of 267 

6.  Conflicting  rights  in  different  companies 267 

7.  8.  Rule  in  the  American  states 267,  268 

9.  Right  to  use  streets  of  a  city 268 

10.  Law  not  the  same  in  all  the  states 268,  269 

11.  Rule  in  Massachusetts 269,  270 

12.  13.  Land  reverts  to  the  owner 270 

14.  True  rule  stated 270,  271 

15.  Conditions  must  be  performed 271 

16.  Further  assurance  of  title 271 

17.  Condemnation  cannot  be  impeached 271 

18.  Where  public  acquire  fee,  it  will  never  revert  to  grantor 271 

SECTION  VIII. 

CORPORATE  FRANCHISES  CONDEMNED. 

1.  Road  franchise  may  be  taken : 272 

2.  Compensation  must  be  made ". '  272,  273 

o.  Railway  franchise  may  be  taken 273 

4.  Rule  defined 273 

5.  Constitutional  restrictions 273,  274 


xxxii  ANALYSIS   OF  CONTENTS. 

■  well  defined 274 


7.  Must  be  exclusive  in  tonus 
-    Legislative  discretion 


274 

274 


i  compared 274,  275 

eminent  domain 275 

at,  a  subordinate  franchise 275 

nnot  create  a  franchise,  above  tlie  reach  of  eminent  domain        276 

iy  apply  streets  in  city  to  any  public  use ;    .      276 

impensation  in  such  cases,  to  the  owner  of  the  fee,  converting 
canal  into  railway 5276,  277 

SECTION   IX. 

COMPENSATION. MODE    OF    ESTIMATING. 

era!  inquiry  simple 277 

2.  Remote  damage  and  benefits  not  to  be  considered 277 

eral  rule  of  estimating  compensation 277,278 

■).  Prospective  damages  assessed 278 

.'.    [n  some  spates  value  "in  money"  is  required 279 

and  benefits  cannot  be  considered  in  such  cases      .     .     .    279-281 

-     statute 281 

'.•.  Farm  accommodations 282 

efits  and  damage,  if  required,  must  be  stated 282,283 

n.  18.  Course  of  the  trial  in  estimating  land  damages 282.283 

es  not  indispensable  to  be  stated 283,284 

or  land  statutory  privileges  must  be  stated  to  be  secured    .     .       284 

s  of  doubt  referred  to  experts 284 

•revisions  as  to  crossing  streets  only  permissive 284 

1'..  In  an  award  of  farm  accommodations,  time  of  the  essence  of  the  award    .      284 


SECTION  X. 

MODE    OF    PROCEDURE. 

l    Legislature  may  prescribe 285 

•J.  Must  be  upon  proper  notice 285,286 

mal  exceptions  waived,  by  appearance 286 

A.  Unless  exception  is  upon  record 286 

.  those  in  interest 286 

l  tie  maj  be  examined 286,287 

7.   Plaintiffs  must  show  joint  interest 287 

.  may  find  facta  and  refer  title  to  the  court 287 

1  in  i  erdict 287 

finding  on  each  claim 288 

'•■nut  interests 288 

12.  Whal  evidenci  nl 288 

A  value  of  land w        288  289 

nion  of  witnesses 290 

my  of  experts .    290  291 

acapable  of  description 291 

...'.'.'.'.'.'.  292,  293 

293 

293 

I  failing  must  pay  costs *    \  293 

21.  <                       •.'juror- .v    .     .  294 

proceedings 294 

i   bt  will  not  lie  on  conditional  report \  294 

.round  of  setting  aside  verdict       ........       294 

ten  of  practice '  295  296 

ee  required  in  order  to  give  jurisdiction    .    .             '  '296 

-V   Interest  on  value  from  time  of  taking 296 


ANALYSIS    OF    CONTENTS.  XXXlii 

SECTION   XI. 

THE    TIME    COMPENSATION    TO    BE    MADE. 

1.  Opinions  conflicting 296 

2.  Chancellor  Kent's  definition       297 

3.  That  of  the  Code  Napoleon 297 

4.  Most  state  constitutions  require  it  to  be  concurrent  with  the  taking  .     .     .       297 

5.  English  cases  do  not  require  this 298,  299 

6.  Adequate  legal  remedy  sufficient 299-301 

7.  Where  required,  payment  is  requisite  to  vest  the  title 301 

8.  Some  states  hold  that  no  compensation  is  requisite 302 

SECTION  XII. 

APPRAISAL    INCLUDES    CONSEQUENTIAL    DAMAGES. 

1.  Consequential  damage  barred 302,  303 

2.  Such  as  damage,  by  blasting  rock 303 

3.  But  not  where  other  land  is  used  unnecessarily 304,  305 

4.  But  loss  by  fires,  obstruction  of  access,  and  cutting  off  spi'ings,  is  barred    .       305 

5.  Loss  by  flowing  land  not  barred 305,306 

6.  Damages,  from  not  building  upon  the  plan  contemplated,  are  barred      .     .       306 

7.  Special  statutory  remedies  reach  such  damages 307 

8.  Exposure  of  land  to  fires 307,  308 

9.  No  action  lies  for  damage  sustained  by  the  use  of  a  railway 309 

SECTION  XIII. 

ACTION    FOR    CONSEQUENTIAL    DAMAGES. 

1.  Statute  remedy  for  lands  "injuriously  affected  " 309,310 

2.  Without  statute  not  liable  to  action 310 

3.  Are  liable  for  negligence  in  construction,  or  use 311,  312 

4.  Statute  remedy  exclusive 312 

5.  Minerals  reserved 312 

6.  Damages  for  taking  land  of  railway  for  highway 313 

7.  Compensation  for  minerals,  when  recoverable 313 

SECTION    XIV. 

RIGHT    TO   OCCUPY   HIGHWAY. 

1.  Decisions  conflicting 314 

2.  First  held  that  owners  of  the  fee  were  entitled  to  additional  damages    .     .       314 

3.  Principle  seems  to  require  this 315-317 

4.  Many  cases  take  a  different  view 317 

5.  Legislatures  may  and  should  require  such  additional  compensation  .     .     .       318 

6.  Courts  of  equity  will'not  enjoin  railways  from  occupying  streets  of  a  city  .       318 

7.  Some  of  the  states  require  such  compensation 319,  320 

n.  11.     All  do  not.     But  the  English  courts,  principle,  and  many  of  the  state 

courts,  do  require  it,  as  matter  of  right 320-322 

8.  Recent  decisions  upon  the  right  to  occupy  the  highway   .     .     .     ...    321,  322 

1.  The  decisions  in  the  state  of  New   York  require  compensation  to  the 

owner  of  the  fee 322,  323 

2.  Distinction  between  streets  of  cities  and  highways  in  the  country  .     .     .       323 

3.  Legislature  may  control  existing  railways 323 

4.  In  Ohio  the  owner  of  the  fee  may  claim  indemnity  against  additional 

injury 323,  324 

5.  True  distinction,  whether  the  use  is  the  same 324 

vol.  i.  c 


XXZiv  ANALYSIS   OF   CONTENTS. 

!  |  e  present  Inclination  seems  to  be  to  require  additional  compensation 

for  '  railway  in  highway 324 

i  the  opposite  direction.    Judge  Ellsworth's  opinion  .     .     .     .    324,325 

B    I  xplanation  oi  the  apparent  confusion 325 

permanenl  erections  made  in  Btreet,  compensation  must  be  made  __   325 

10    Rights  of  land-owners  as  to  obstructing  railway 3-_'">,  326 

Recent  cases  in  N<«  York,  property  rights  of  the  company .    326-328 

lemands  reasonable  protection 32s,  329 

slature  have  power  to  impose  a  permanent  burden  upon  streets     .      329 

tuned  as  matter  of  construction 329 

I    D(  iniform.    Generally  held  that  street  railway  franchise  exists 

in  the  easement  for  the  highway.    Analogy  of  steam  roads    ....      329 

•  .1 t  increase  the  servitude  of  the  highway    ....  329,330 

:.  and  treated,  us  a  portion  of  the  highway  .     .     .      330 
v  or  franchise  ol  street  railways,  exclusive,  as  to  passenger  traffic      330 

point  further  illustrated •.     .     .   330,331 

n  far  the  legislature  may  effect  the  exclusiveness  of  this  franchise    .     .      331 
11.  \\                    nsation  is  required,  no  abridgment  of  right  implied .     .     .     .      331 
■   and  property  must  remain  subject  to  legislative  and  munici- 
pal control 331,  332 

llow  additional  land-damages  for  change  of  grade  of  the 

332 

14.  This  not  demandable,  unless  the  change  is  required  for  something  in  addi- 
tion to  highway,  or  unless  given  by  special  statute 332,  333 

16-19.  Summary  of  the  argument  under  this  head 333 

SECTION    XV. 

CONFLICTING    KIGIITS    IN    DIFFERENT    COMPANIES. 

1    l:  ulway  company  subservient  to  another,  can  only  take  of  the  other  land 

enough  for  its  track 334 

•J.   When-  do  apparent  conflict  in  route,  first  located  acquires  superior  right    .       334 

SECTION    XVI. 

RIGHT    TO    BUILD    OVER    NAVIGABLE    WATERS. 

1.  Legislature  may  grant  the  right 335 

irian  proprietor  owns  only. to  the  water 336 

he  water  subservient  to  public  use 337 

islative  grant  paramount,  except  the  national  rights 337 

ii  flats  where  tide  ebbs  and  flows .  338  341 

•  adjoining  owners  in  Massachusetts .'.'..    '341 

7.  Railway  grant  to  place  of  shipping .    .    '.    .      341 

ncipal  grant  carries  its  incidents '.'.',  341 

a  harbor  includes  necessary  erections '   341  342 

10,11  »  held  navigable  in  this  country    ..........    '342 

it  off  from  wharves  is  "  injuriously  affected  "  '.    .     .     .    .   342  343 

ress  infringed  creates  a  nuisance.   Party  specially    ' 

injured  m  ition ...  343 

Hampshire '      040 

"  ;|  nuisance  ..........  343  344 

-  applied  to  use  oJ  railway  ...........    '  344 

SECTION    XVII. 

"l:-":"    ""'•    '"     BTEBAM8   BY    COMPANY'S   WORKS. 

m,  witl, out  compensation  .  Q44 

ny  liable  for  defective  construction  .    ...'.'..['.         '    '      345 


ANALYSIS   OF    CONTENTS.  XXXV 

3.  So  also  if  they  use  defective  works,  built  by  others 345 

4.  Company  liable  to  action,  where  mandamus  will  not  lie 346 

5.  Company  liable  for  defective  works,  done  according  to  their  plans    .     .     .       346 

6.  When  a  railway  "  cuts  off"  wharves  from  the  navigation 346,  347 

7.  Stream  must  be  restored  and  maintained 347 

8.  Company  cannot  cast  surface  water  on  adjoining  land,  except  from  strict 

necessity 347 

9.  Public  company  exceeding  their  powers,  liable  to  an  action 347 

10.  In  such  cases  courts  of  equity  will  relieve  by  injunction 347,  348 

SECTION    XVIII. 

OBSTRUCTION   OF   PRIVATE   WATS. 

1 .  Obstruction  of  private  way  matter  of  fact,  need  not  be  illegal 348 

2.  Farm  road  on  one's  own  land,  not  private  way 348 

3.  But  railway  may  lawfully  pass  along  public  street 349 

SECTION   XIX. 

STATUTE    REMEDY    EXCLUSIVE. 

1.  Eemedy  for  land  taken,  exclusively  under  the  statute 349 

2.  But  if  company  do  not  pursue  statute  are  liable  as  trespassers.     Liable  for 

negligence  also 350,  351 

3.  Courts  of  equity  often  interfere  by  injunction 351 

4.  Important  case  in  the  House  of  Lords 351,  352 

5.  Right  at  law  must  be  first  established 352 

6.  Where  statute  remedy  fails,  common-law  remedy  exists 352 

7.  The  general  rule  adhered  to  in  America 352 

8.  Company  adopting  works  responsible  for  amount  awarded  for  land  dam- 

ages . 352,  353 

SECTION  XX. 

LANDS  INJURIOUSLY  AFFECTED. 

1.  Obstruction  of  way,  loss  of  custom 353-355 

2.  Equity  will  not  enjoin  legal  right 355 

3.  Liable  for  building  railway,  so  as  to  cut  off  wharf 355 

4.  Not  liable  for  crossing  highway  on  level 355,  356 

5.  English  statute  only  includes  damages  by  construction 356 

6.  Equity  will  not  enjoin  a  doubtful  claim 356 

7.  Damages  unforeseen,  at  the  time  of  the  appraisal,  may  be  recovered,  in 

England 356,357 

8.  Injuries  to  ferry,  and  towing-path,  compensated .•     .     .    357,358 

9.  10.  Remote  injuries  not  within  the  statute 358 

11.  Damages  compensated,  under  statute  of  Massachusetts 358,  359 

12.  Damages  not  compensated,  as  being  too  remote 359 

13.  For  negligence  in  construction,  remedy  at  common  law 359 

14.  Or  neglect  to  repair 359 

15.  Recovery  under  the  statute,  &c 360 

16.  Possession  by  railway,  notice  of  extent  of  title 360 

17.  Railways  have  right  to  exclusive  possession  of  roadway 360 

SECTION    XXI. 

DIFFERENT    ESTATES    PROTECTED. 

1.  Tenant's  good- will  and  chance  of  renewal  protected 361 

2.  Tenants  entitled  to  compensation  for  change  of  location 362 

3.  Church  property  in  England,  how  estimated 362 


xxxvi  ANALYSIS   OF    CONTENTS. 

i    Tenant  not  entitled  to  sue,  as  owner  of  private  way 362 

ould  sue  for  compensation  .     •     •     • '  „„„ 

d  lessee  both  entitled  to  compensation 't^t 

■i  ,,;  way,  from  necessity,  protected ™* 

.v    Mill-owner  entitled  to  action  for  obstructing  water <£° 

upier  of  land  entitled  to  compensation  .    .    .     •     •     •    •    ■     •  . ■    ;    • 

,ant,  without  power  of  alienation,  forfeits  Ins  estate,  by  license  to  com-  ^ 

U.  Damages  not  transferable  by  deed  of  land,  after  they  accrue 364 

SECTION    XXII. 

ARHITRATION. 

L.  Attorney,  without  express  power,  may  refer  disputed  claim 365 

aid  binding,  unless  objected  to  in  court 365 

SECTION    XXIII. 

STATUTE    OF    LIMITATIONS. 

I.  General  limitation  of  actions  applies  to  land  claim 365,366 

tition  will  not  save  bar 366 

[uiescence  of  forty  years  by  land-owner,  effect  of 366 

ppel  will  take  effect  if  the  use  is  clearly  adverse 366,  367 


CHAPTER    XII. 

REMEDIES   BY    LAND-OWNERS   UNDER   THE   ENGLISH    STATUTE. 

SECTION    I. 

I  OMPANT    BOUND    TO   PURCHASE    THE    WHOLE   OF   A   HOUSE,    ETC. 

1.  The  company  to  "take  the  accessories  with  the  house 368 

the  owner  has  an  election  in  regard  to  that 368,369 

leposit  of  the  appraised  value  means  the  value  of  all  the  company  are 

bound  tn  take 369 

1    '       tpany  bound  to  take  all  of  which  they  take  part,  and  pay  special  dam- 

des 370 

5.  Where  the  company  desire  part,  not  compellable  to  take  whole  unless  they 

-i-i  in  taking  part 370 

[from  house  by  highway  not  part  of  premises 371 

SECTION    II. 

THE     COMPACT     COMPELLABLE    TO    TAKE    INTERSECTED    LANDS,    AND    THE    OWNER    TO 

SELL. 

-  than  half  an  acre  remains  on  either  side,  company  must  buy    .       371 
'"  nerJ?U8.1  M"  whe.re  lani1  of  less  value  than  railroad  crossing    .     .     .    371,  372 


._  crossing    .     .     .   371,372 
8  and  4.  Word  "  town,    how  construed 372 


SECTION    III. 

IICE  TO  TREAT  FOR  THE  PURCHASE  OF  LAND. 

m  under  statute  of  limitations 372 

..■■•my  compelled  to  summon  jury 372 


ANALYSIS   OP   CONTENTS.  XXXV11 

3.  Ejectment  not  maintainable  against  company 373 

4.  Powers  to  purchase  or  enter,  how  saved 373,  374 

5.  Subsequent  purchasers  affected  by  notice  to  treat  as  the  inception  of  title  .       374 

6.  But  the  notice  may  be  withdrawn  before  any  thing  is  done  under  it  .     .     .       374 

7.  Not  indispensable  to  declare  the  use,  or  that  it  is  for  station,  and  another 

company  to  participate  in  use 375 

SECTION    IV. 

REQUISITES    OF    THE    NOTICE    TO    TREAT. 

1.  Notice,  to  treat  must,  in  terms  or  by  reference,  accurately  describe  land      .      375 

2.  After  notice  to  treat  company  compellable  to  purchase.     Company  cannot 

retract  after  giving  notice  to  treat 375,  376 

3.  New  notices  given  for  additional  lands • 376 

4.  Power  to  take  land  not  lost  by  former  unwarranted  attempt 376 

5.  Lands  may  be  taken  for  branch  railway 376 

6.  Effect  of  notice  in  case  of  a  public  park 376,  377 

SECTION    V. 

THE  NOTICE  MAT  BE  WAIVED,  BY  THE  PARTY  ENTERING  INTO  THE  NEGOTIATION. 

1.  Notice  must  be  set  forth  in  proceedings 377 

2.  Agreement  to  waive  operates  as  estoppel 377 

3.  Certiorari  denied  where  party  has  suffered  no  injury 377 

SECTION    VI. 

TITLE    OP    THE    CLAIMANT    MUST    BE    DISTINCTLY    STATED. 

1.  Claimant's  reply  to  notice  should  be  clear  and  accurate 378 

2.  Award  bad,  which  does  not  state  claimant's  interest 378 

3.  Where  lands  are  held  by  a  receiver  or  commission  for  a  lunatic.     Expres- 

sion "  fee-simple  in  possession  " 378,  379 

n.  3.  Analogous  American  cases •• 379 

SECTION    VII. 

THE    CLAIM    OF    THE    LAND-OWNER    MUST    CORRESPOND    WITH    THE    NOTICE.       380 


CHAPTER    XIII. 

ENTRY   UPON   LANDS    BEFORE   COMPENSATION   IS   ASSESSED. 

SECTION    I. 

LANDS    TAKEN    OR    INJURIOUSLY     AFFECTED,     WITHOUT     HAVING     PREVIOUSLY     MADE 
COMPENSATION    TO    THE    PARTIES. 

1.  No  entry  under  English  statutes  without  previous  compensation,  except 

for  preliminary  survey 381 

2.  Legal  remedies  against  company  offending 381 

3.  What  acts  constitute  taking  possession  under  statute 382 

4.  Company  may  enter  with  land-owner's  consent  after  agreement  for  arbitra- 

tion    382 

5.  Bond  may  be  given  in  certain  cases 382,  383 

6.  Company  restrained  from  using  land  until  price  paid,  even  after  line  in 

operation.     But  this  rule  dissented  from 383,  384 


tXXViii  ANALYSIS   OP   CONTENTS. 

SECTION  II. 

|      -     111   [SITE    TO    ENABLE     THE     COMPANY     TO     ENTER     UPON     LAND. 

nal  valuation  under  English  Statutes 384 

pilarities  in  proceedings 385 

:;.  Penalty  for  irregular  entry  upon  lands 385 

er  verdict  estimating  damages,  but  before  judgment 38o 

sing  damages  provided  in  charter  not  superseded  by  subse- 
quent general  railway  act 385 

SECTION  III. 

HOD]     ..I-    OBTAINING    COMPENSATION    UNDER   THE    STATUTE,    FOR   LANDS    TAKEN,   OR 
IN  II   Kl.  1 1  my     EFFECTED,    "WHERE    NO    COMPENSATION    IS     OFFERED. 

1  mant  may  elect  arbitration  or  jury  trial 386 

•J    Biethod  of  procedure 386 

SECTION  IV. 

THE  ONUS  OF  CARRYING  FORWARD  PROCEEDINGS. 

1  Rests  upon  claimant  after  company  have  taken  possession 386,387 

■J.   Miscellaneous  provisions 387 

annut  be  had  unless  actual  possession  is  taken,  or  injury 
done 387 

SECTION  V. 

EQUITY    WILT.    NOT    INTERFERE,    BY    INJUNCTION,    BECAUSE    LANDS    ARE    BEING    INJU- 
BIOl  BL1    AFFECT!  D,   WITHOUT    NOTICE    TO   TREAT   OR   PREVIOUS    COMPENSATION. 

manl  must  wait  until  works  are  completed 388 

2  Even  if  appearance  of  land  will  be  greatly  altered 388 

:•;    How  far  equity  interferes  where  legal  claim  of  party  is  denied  .     .     .     .   388,389 
4    Wh.re  a  special  mode  of  compensation  has  been  agreed  upon 389 

SECTION  VI. 

-IIIIMII ■'-    TOBY,  OB    ARBITRATOR,  CANNOT  DETERMINE  THE    QUESTION    OF    RIGHT    IN 
THE    CLAIMANT,   BUT    ONLY    THE    AMOUNT    OF    DAMAGES. 

-ions  sustain  this  view 389 

itement  of  recent  case 389,390 

states  assessment  is  final '  390 

1  intiff  will  recover  damages  assessed  if  he  suffered  any  legal  injury    .     .       391 

SECTION  VII. 

Tl"     IX1,N|    '"     COMPENSATION    TO    LAND-OWNERS,    AND   OTHER   INCIDENTS   BY    THE 

ENGLISH    STATUTES. 

1    Liberal  compensation  allowed 391 

-    ;                  ■  ler  English  Btatutes  ■■........,  '  391  392 

estimating  damages  ......  ...         ,  ^ 

laim  for  damages  passes  to  the  devisee !  or  executor  .'  '.'.'.'.      392 

illy  entitled  to  damages  accruing  during  his  time  ....       392 


ANALYSIS    OF    CONTENTS.  XXXIX 


SECTION  VIII. 

RIGHT    TO    TEMPORARY    USE    OF    LAND     TO     ENABLE     COMPANY     TO     MAKE    ERECTIONS 

UPON    OTHER    LANDS. 

1.  Right  to  pass  another  railway  by  a  bridge  gives  a  temporary  use  of  their 

land,  but  no  right  to  build  abutments  upon  it 393 

2.  Right  to  construct  a  bridge  across  a  canal  gives  right  of  building  a  tem- 

porary bridge 393 

3.  And  if  thus  erected  bona  fide  may  be  used  for  other  purposes     ....   393,394 

SECTION  IX. 

RESERVATIONS     TO     LAND-OWNERS     TO     BUILD     PRIVATE    RAILWAY     ACROSS     PUBLIC 

RAILWAY 394 


SECTION  X. 

DISPOSITION    OF    SUPERFLUOUS    LANDS. 

1.  Vest  in  adjoining  owner  unless  disposed  of  in  ten  years 394,  395 

2.  Former  owner  not  excluded.     Effect  of  cottage  in  field 395 

CHAPTER  XIV. 

THE   MODE   OF   ASSESSING   COMPENSATION   UNDER   THE   ENGLISH   STATUTES. 

SECTION  I. 

BY    JUSTICES    OF    THE    PEACE. 

1.  Where  compensation  claimed  does  not  exceed  £50 396 

2.  Mode  of  enforcing  award 396 

3.  Value  of  land  and  injury  accruing  from  severance  to  be  considered    .     .     .       396 

SECTION  II. 

BY    SURVEYORS 396,  397 

SECTION  III. 

BY    ARBITRATION. 

1.  May  be  claimed  in  cases  exceeding  jurisdiction  of  justices  of  the  peace  .     .      397 

2.  How  made  compulsory 397,  398 

3.  What  form  of  notice  is  sufficient 398 

n.  5.  Analogous  American  cases 398 

4.  Arbitrator's  power  limited  to  award  of  pecuniary  compensation     ....       398 

5.  Where  land-owner  gives  no  notice,  company  may  treat  it  as  case  of  dis- 

puted compensation 398,  399 

6.  Similar  rule  under  Massachusetts  statute  regarding  alteration   of  high- 

ways       399 

7.  And  land-owners  may  recover  without  waiting  for  selectmen  to  act   .     .     .       399 

8.  Company  estopped  in  such  case  from  denying  that  road  was  constructed 

by  their  servants.     Embankments  part  of  the  railway 399 

9.  Finality  of  award 399 

10.  May  employ  experts.     Damages  embraced 400 

11.  Construction  of  general  award 400 


xl  ANALYSIS   OF   CONTENTS. 


PART   IV. 

THB  I  WV  OF  CONTB  UTS  AS  APPLIED  TO  THE  CONSTRUCTION  OF 
RAILWAYS  AND  TELEGRAPHS.    TOLLS,  &c. 

CHAPTER  XV. 

CONSTRUCTION   OF   RAILWAYS. 

SECTION  I. 
LINK    OF    RAILWAY.  — RIGHT    OF    DEVIATION. 

1.  Manner  of  defining  the  route  in  English  charters Sr_ii$ 

2.  Question  involved  stated .'••'•         ~7nl 

I.  Plans  only  binding,  when  and  for  the  purpose  referred  to,  m  the  act .     .     .      407 

tor  bound  by  deviation,  unless  he  object      ..........      407 

f  equity  will  not  enforce  contract  against  public  security  .     .     .     .       407 

•  to  construct  accessory  works •      408 

Company  may  take  lands  designated,  in  their  discretion 408,409 

uty  cannot  enforce  contract,  not  incorporated  into  the  act 409 

ght  of  deviation  lost  by  election 409,  410 

11.  Railway  between  two  towns,  extent  of  grant 410 

\-l.  Grant  of  land  for  railway  includes  accessories 411 

ited  need  not  be  followed  literally 411 

11    Terminus  being  a  town,  is  not  extended  as  the  town  extends    ....  411,412 

epting  compensation  waives  informality 412 

owers  limited  in  time  expire  with  limitation 412 

•.-miction  of  charter  as  to  extent  of  route 412 

p  may  be  made  to  yield  to  other  grounds  of  construction      ....  412,413 
19.  Power  to  change  location  must  be  exercised  before  construction    ....      413 

ding  force  of  plans  made  part  of  charter 413 

21.  Grant  terminating  at  town  liberally  construed 413 

SECTION  II. 

DISTANCE   HOW   MEASURED. 

1.  This  is  affected  by  subject-matter 414 

tracts  to  build  railway,  by  rate  per  mile 414 

neral  rule  to  measure  by  Btraight  line 414,  415 

lie  rule  in  regard  to  turnpike  roads 415 

v  tixed  by- mile  means  lull  mile;  no  charge  for  fractions 415 

SECTION  III. 

MODE    OK    CONSTRUCTION,    TO   BE    DONE    WITH    LEAST    DAMAGE. 

1  D  I  to  form  of  the  road,  but  the  mode  of  construction     .     .     .      416 

al  provisions  of  act  not  controlled  by  this  general  one 416 

interfered  with,  to  be  restored,  for  all  uses 416 

SECTION  IV. 

MODE    OF    CROSSING    HIGHWAYS. 

luire  it  should  not  be  at  grade 417 

2  Or  if  so,  that  gates  should  be  erected  and  tended 417 


ANALYSIS   OF   CONTENTS.  xli 

3.  And  if  near  a  station,  railway  train  not  to  exceed  four  miles  an  hour      .   417,  418 

4.  Cannot  alter  course  of  highway     ' 418 

5.  Right  to  appropriate  military  road 418 

6.  Mandamus  does  not  lie  where  company  have  an  election 418 

7.  Railway  cannot  alter  highway  to  avoid  building  bridge 418,419 

8.  Extent  of  repair  of  bridge  over  railway 419 

9.  Permission  to  connect  branches  with  main  line  not  revocable    ....    419,  420 

10.  Grant  to  build   railways    across  main  line  implies  right  to  use  them  as 

common  carriers 420 

11.  Railway  responsible  for  injury  by  falling  into  culvert  when  covered  by 

snow '. 420 

12.  The  right  to  lay  line  across  railway  carries  right  to  lay  as  many  tracks 

as  are  convenient  for  the  business 420 

13.  Damages  for  laying  highway  across  railway 420 

14.  Laying  highway  across  railway  at   grade.      Company  not  estopped   by 

contract  with  former  owner  of  land 420,421 

15.  Towns  not  at  liberty  to  interfere  with  railway  structures 421 

SECTION  V. 

RIGHTS    OP    TELEGRAPH    COMPANIES. 

1.  Right  to  "  pass  directly  across  a  railway,"  does  not  justify  boring  under  it  .       421 

2.  Exposition  of  the  terms  "  under  "  and  "  across  " 422 

3.  Erecting  posts  in  highway  a  nuisance,  even  if  sufficient  space  remain    .     .       422 
n.  4.  Opinion  of  Crompton,  J 422-424 

SECTION    VI. 

DUTY    IN    REGARD    TO    SUBSTITUTED   WORKS. 

1.  Bound  to  repair  bridge  substituted  for  ford,  or  to  carry  highway  over  rail- 

way      423,424 

2.  The  same  rule  has  been  applied  to  drains,  substituted  for  others    ....      424 

3.  The  extent  of  this  duty  as  applied  to  bridge  and  approaches     ....   424,  425 

SECTION    VII. 

CONSTRUCTION    OF    CHARTER    IN    REGARD    TO    NATURE    OP    WORKS,    AND    MODE 

OF    CONSTRUCTION 425 


SECTION   VIII. 

TERMS    OF    CONTRACT. MONET    PENALTIES. EXCUSE    FOR    NON-PERFORMANCE. 

1.  Contracts  for  construction  assume  unusual  forms 426 

2.  Estimates  made  by  engineer 426,  427 

3.  Money  penalties,  liquidated  damages.     Full  performance 427,  428 

4.  Excuses  for  non-performance 428 

5.  Penalty  not  incurred,  unless  upon  strictest  construction 428,  429 

6,7.  Contractor  not  entitled  to  any  thing  for  part-performance 429 

n.  2.  Proper  construction  of  the  terms  used  in  these  contracts 427,  428 

8.  Contract  for  additional  compensation  must  be  strictly  performed  ....      429 

SECTION  IX. 

FORM    OF    EXECUTION. EXTRA    WORK. DEVIATIONS. 

1.  No  particular  form  of  contract  requisite  generally 430 

2.  But  the  express  requirements  of  the  charter  must  be  complied  with  .     .     .      431 


xlii  \    A.LY8I8   OF   CONTENTS. 

ik  cannol  be  recovered  of  the  company,  unless  done  upon  the 

Bed  in  contract 431,432 

mpany  have  the  benefit  of  work  are  liable 432 

SECTION   X. 

PABT1  Kill  HI  Ml.   INK  CONTRACT,  BHE  "ill  BR  MAY  SUE  PRESENTLY. — 

IM  \  I  1  W.l.i:  \<   CIDEH  1. 

1  Party  repudiating  excuses  the  other 433 

2  New  contract  valid 433 

it  cannot  bind  the  company 433 

inevitable  accident 434 


SECTION  XI. 

I     BJCFBREES    AM>    ARBITRATORS    IN    REGARD   TO   CONSTRUCTION 
CONTRACTS. 

ird  valid  if  substantially  correct 434,435 

it  will  not  set  aside  award,  where  it  does  substantial  justice    ....       435 


SECTION  XII. 

DECISIONS    OF    COMPANY'S    ENGINEERS. 

timatee  fur  advances,  mere  approximations,  under  English  practice   .   435,  436 

h  here  the  engineer's  estimates  are  final,  can  only  be  set  aside  for  par- 
tiality or  mistake 436,437 

tractor  bound  by  practical  construction  of  the  contract 437 

mates  do  not  conclude  matters  not  referred 437,438 

.-'lit  to  accept  pay  in  depreciated  orders,  he  is  bound  by  it      438 
by  acquiescence 438 

7.  Engineer  cannot  delegate  his  authority 438 

8.  Arbitrator  must  notify  parties,  and  act  bona  fide 438 


SECTION    XIII. 

l:l  l!ir    IV    K'H'ITV    FROM    DECISIONS    OF    COMPANY'S   ENGINEERS. 

m  important  case  stated. 439-444 

:u  ui'  contractor  in  the  hill 445 

3.  Bill  sustained.     Amendment  alleging  mistake  in  estimates 445 

;          ef  only  to  be  had  in  equity 445 

fraud  must  he  very  Hear 445 

being  shareholder,  not  valid  objection 445 

conclusive  as  to  quality  of  work,  but  not  as  to  quan- 

445 

1  contract  condonation  of  old  claims 445 

ed  after  company  had  completed  work .'  445,446 

1.  Money  penalties  cannot  be  relieved  against  unless  for  fraud '446 


11    1  _'■  es  upon  this  subject ',        439-445 

■    mates  not  conclusive  unless  so  agreed 446 

e  tor.  whose  work  surrendered  by  supplemental  contract,  entitled  to 
tnll  r  1, ^g 

18.  Direction  of  umpire  binding  on  contracting  parties,  and  dispenses  with  cer- 
tificate oi  lull  performance    .         446 


ANALYSIS   OP   CONTENTS.  xliii 


SECTION  XIV. 

FRAUDS  IN  CONTRACTS  FOR  CONSTRUCTION. 

1.  Relievable  in  equity  upon  general  principles 447 

2.  Statement  of  leading  eases  upon  this  subject 447-449 

3.  Where  no  definite  contract  closed,  no  relief  can  be  granted 450,  451 

SECTION  XV. 

ENGINEER'S    ESTIMATE    WANTING    THROUGH    FAULT    OF    COMPANY. 

1.  In  such  case  contractor  may  maintain  bill  in  equity 451,  452 

2.  Grounds  of  equitable  interference 452,  453 

3.  After  company  terminate  contract,  contractor  will  be  enjoined  from  inter- 

ference.    And  same  rule  sometimes  extends  to  company 453,  454 

4.  Stipulation  requiring  engineer's  estimate,  not  void 454 

5.  Not  the  same  as  an  agreement,  that  all  disputes  shall  be  decided  by  arbi- 

tration      454 

6.  Engineer's  estimate  proper  condition  precedent 454 

7.  Same  as  sale  of  goods,  at  the  valuation  of  third  party 454,  455 

8.  The  result  of  all  the  English  cases  seems  to  be,  that  only  the  question  of 

damages  properly  referable  to  the  engineer 455 

9.  The  rule  in  this  respect  different,  in  this  country 455,  456 

SECTION  XVI. 

CONTRACTS  FOR  MATERIALS  AND  MACHINERY. 

1.  Manufacturer  not  liable  for  latent  defect  in  materials 456,  457 

2.  Contract  for  railway  sleepers,  terms  stated 457 

3.  Construction  of  such  contract 457,  458 

4.  Party  may  waive  stipulation  in  contract,  by  acquiescence 458 

5.  Company  liable  for  materials,  accepted  and  used 458 

SECTION  XVII. 

CONTRACTS  TO  PAY  IN  THE  STOCK  OF  THE  COMPANY. 

1.  Breach  of  such  contract  generally  entitles  the  party  to  recover  the  nomi- 

nal value  of  stock 458,  459 

2.  But  if  the  party  have  not  strictly  performed  on  his  part,  can  only  recover 

market  value 459 

3.  Cash  portion  overpaid,  will  only  reduce  stock  portion  dollar  for  dollar    .   460,  461 
n.  2.  Lawful  incumbrance  on  company's  property,  will  not  excuse  contractor 

from  accepting  stock 459-461 

.      SECTION  XVIII. 

TIME    AND    MODE    OF    PAYMENT. 

1.  No  time  specified,  payment  due  only  when  work  completed 461 

2.  Stock  payments  must  ordinarily  be  demanded 461 

3.  But  if  company  pay  monthly,  such  usage  qualifies  contract 461 

4.  Contract  to  build  wall  by  cubic  yard,  implies  measurement  in  the  wall .     .  461 

SECTION  XIX. 

REMEDY    ON    CONTRACTS    FOR    RAILWAY    CONSTRUCTION. 

1.  Recovery  on  general  counts 462 

2.  Amount  and  proof  governed  by  contract 462 


xHv  ANALYSIS    OF    CONTENTS. 

I  [ON    XX. 
BBCH  LHK  -'    I.H'.N. 

t  exist  inn     urd  to  a  railway 462,  463 

,  J 4bd 

SECTION   XXI. 

.    .,    ,,s     i.i  II  Ml     01     LAB0HEB8    AND    S  IB-CONTRACTORS. 

rg  not  bound  by  stipulations  of  contractor 463 

mblic  works  have  a  claim  against  the  company     ....  463,464 
tractor  cannot  go  against  the  proprietor  of  the  works,  although 
employed  by  him  may 464 

SECTION  XXII. 

CONDITIONS    IN    .   HAKTER    AND    ELECTIONS. 

i  performed,  waived,  or  extended 464 

ipanj  bound  by  its  election 464 


CHAPTER  XVI. 

I  \<  B88ITB    COLLS,    FARE,    AND    FREIGHT. 

ompanies  created  sometimes  for  maintaining  road  only   ....      465 

ills  i.ikcn  may  be  recovered  back 465,  466 

ve  fare  and  freight 466 

-1    Bj  -     statute,  packed  parcels  must  be  rated  in  mass 466 

i    requires  unity  of  management  and  control .     .     .      466 
id   railways    almost    unknown   here.      Fare   and  freight  often 

limited    ..." 466,467 

■.mi  v  of  certain  profit  on  investment  lawful 467 

jtriction  of  freight  to  certain  rate  per  ton,  extends  to  whole  line    .     .     .      467 

declare  for  tolls 467 

lishing  and  requisite  proof 467 

11.  A  provision  in  a  railway  charter  for  the  payment  of  a  certain  tonnage  to 

»  onlj  a  mode  of  taxation 467,468 

company  is  allowed  to  take  tolls  on  sections  of  their  road  this 

tion  a  distinct  work 468 

York  in  regard  to  the  difference  between 

taken  in  the  cars  and  at  the  stations 468,469 

Btatute  are  payable  in  legal  tender  notes 469 


PART    V. 


THE    LAW  OF     LIABILITY     FOR     FIRES;    INJURIES    TO    DOMESTIC 
ANIMALS;    FENCES. 

CHAPTER    XVII. 

UABILIT1     I  mi;    pibbb    COMMUNICATED    BY    COMPANY^     ENGINES. 

immunicated  evidence  of  negligence 473 

ne  tune  questioned  in  England 474 


ANALYSIS    OF    CONTENTS.  xlv 

3.  Opinion  of  Tindal,  C.  J.,  upon  this  point 475 

4.  English  companies  feel  bound  to  use  precautions  against  fire     ....    475,  476 
6.  Rule  of  evidence,  in  this  country,  more  favorable  to  companies     ....       476 

6.  But  the  company  are  liable  for  damage  by  fire   through  want  of  care  on 

their  part " 476 

7.  One  is  not  precluded  from  recovery,  by  placing  buildings  in  an  exposed 

situation 477,478 

8.  When  insurers  pay  damages  on  insured  property,  may  have  action  against 

company 478  ■ 

9.  Where   company  made  liable   for  injury  to  all  property,  are  allowed  to 

insure 478,479 

10.  Construction  of  statutes  making  companies  liable  for  loss  by  fires     .     .     .       479 

11.  Extent  of  responsibility  of  insurer  of  goods,  to  company 479 

12.  Construction  of  statute  as  to  engines,  which  do  not  consume  smoke  .     .     .       480 

13.  Construction  of  Massachusetts  statute  and  mode  of  trial 480 

14.  15.  For  what  acts  railway  companies  may  become  responsible  without  any 

actual  negligence 480, 481 

16.  Company  not  responsible  for  fires  resulting  from  other  fires  caused  by 

them 481,482 

17  &  n.  27.    The    point    illustrated    by  the    late    cases,     and  the  conclusion 

reached,  that  these  cases  are  not  sound 482-484 


CHAPTER     XVIII. 

INJURIES   TO    DOMESTIC    ANIMALS. 

1.  Company  not  liable  unless  bound  to  keep  the  animals  off  the  track   .     .   485,  486 

2.  Some  cases  go  even  further,  in  favor  of  the  company 486 

3.  Not  liable  where  the  animals  were  wrongfully  abroad 486,487 

4.  Not  liable  for  injury  to  animals,  on  land  where  company  not  bound  to 

fence 487 

5.  Where  company  bound  to  fence  are  prima  facie  liable  for  injury  to  cattle    .       487 

6.  But  if  owner  is  in  fault,  company  not  liable     .  488 

7.  In  such  case  company  only  liable  for  gross  neglect  or  wilful  injury    .     .    488,  489 

8.  Owner  cannot  recover,  if  he  suffer  his  cattle  to  go  at  large  near  a  rail- 

way   489,490 

9.  Company  not  liable  in  such  case,  unless  they  might  have   avoided   the 

injury 490 

10.  Where  company  are  required  to  keep  gates  closed,  are  liable  to  any  party 

injured  by  omission 490,491 

11.  Opinion  of  Gibson,  J.,  on  this  subject 492,  493 

12.  17.  Not  liable  for  consequences  of  the  proper  use  of  their  engines      .     .    493-495 

13.  Questions  of  negligence  ordinarily  to  be  determined  by  jury 494 

14.  But  this  is  true  only  where  the  testimony  leaves  the  question  doubtful       .       494 

15.  Actions  may  be  maintained  sometimes,  for  remote  consequences  of  negli- 

gence      494,  495 

16-18.  Especially  where  a  statutory  duty  is  neglected  by  company      .  .    495,  496 

19.  The  question  of  negligence  is  one  for  the  jury 496 

20.  One  who  suffers  an  animal'to  go  at  large  can  onlv  recover  for  gross  neg- 

lect     " 496 

21.  Testimony  of  experts  receivable  as  to  management  of  engines      .     .     .   496,  497 

22.  One  who  suffers  cattle  to  go  at  large  must  take  the  risk 497 

23.  The  company  owe  a  primary  duty  to  passengers,  &c 497,  498 

24.  In  Maryland  company  liable  unless  for  unavoidable  accident 498 

25.  In  Indiana  common-law  rule  prevails 498 

26.  In  Missouri,  modified  by  statute 498,  499 

27.  In  California  cattle  may  lawfully  be  suffered  to  go  at  large 499 

28.  29.  Abstract  of  late  cases  in  Illinois 499,  500 

30.  The  weight  of  evidence  and  of  presumption 500,  501 

31.  Company  not  liable  except  for  negligence 501 

32.  Company  must  use  all  statutory  and  other  precautions 501 

33.  Not  competent  to  prove  negligence  of  the^ame  kind  on  other  occasions    .       501 

34.  Rule  of  damages 501 


xlvi  ANALYSIS    OF    CONTENTS. 

CHAPTER    \rx. 

i  l  \<  ES. 
TION    I. 

I  ion    WHOM    l.l  -I-     MM     OBLIGATION   TO    MAINTAIN    FENCES. 

1  By  the  English  statute  there  is  a  separate  provision  made  for  fencing  .  .  503 
is  there  enforced  against  the  companies  by  mandamus  .  .  503 
-mli  provision  exists,  the  expense  of  fencing  is  part  of  the 

land  damages 503,  504 

:  where  that  is  assessed,  and  payment  resisted  by  the  company,  the 

land-owner  is  not  obliged  to  fence 504-506 

...  In  Bome  cases  it  has  been  held  the  fencing  is  to  be  done  equally,  by  the 

company  and  the  land-owner 506 

•     A in.  ni   of  land  damages,  on  condition  company  build  fences,  raises 

an  implied  duty  on  their  part 507,508 

7.  In  Borne  states,  owners  of  cattle  not  required  to  confine  them  upon  their 

own  land 508 

■  railway  bound  t<>  keep  up  fences  and  farm  accommodations     .   508,  509 

l  ompany  bound  to  fence  land  acquired  by  grant  509 

dred  wherever  necessary 509 

11.  Where  land-owner  declines  farm  accommodations,  has  no  redress;  courts 

of  equity  will  not  decree  specific  performance 509,510 

Mul  farm  accommodations  not  required  for  safety  of  servants  and 

employes 510,511 

■   where  company  liable  for  all  cattle  killed 511 

rty  bound  to  fence  assumes  primary  responsibility 511 

•  responsible  tin-  injury  at  road  crossings 512 

ilway  companies  not  responsible  for  injury  to  cattle  by  defect  of  fence 

about  yard 512 

one  escaping  through  defect  of  fence 512,  513 

nust  appear  the  injury  occurred  through  default  of  company   ....      513 
.  irda  required  in  villages,  but  nut  so  as  to  render  streets  unsafe     .       513 
npany  responsible  tin-  injuries  through  defect  of   fences    and  cattle- 

guards 513 

Sew  Hampshire  maintain  common-law  responsibility     .     .     .   513,514 

2.  Company  responsible  as  long  as  they  control  road 514 

-■:    Maintaining  fei  ong   the  line  of  railway,  matter  of  police.     Duty  of 

statute'and  at  common  law.     Fence  held 

important  in  keeping  children  off  the  track 514,  515 

toland-owm  ng  to  maintain  fence,  &c 515 

ponsible  for  defect  of  fence  unless  in  fault 515,516 

not  responsible  in  Indiana  unless  in  fault 516 

y  riot  liable  where  fence  thrown  down  by  others 516 

iwner  in  fault  he  cannot  recover  unless,  &c 516 

bi  not  building  fence,  &c 516,517 

i-t  keep  up  bars '  517 

111  ral  rule '.'.'.  517 

must  be  brought  within  it   .'    '.     '.     '.     '.     '  517  518 

ie  required  to  keep  his  cattle  at  home '  518 

[uired 51g 


SECTION  II. 

'   'Ml   MM  COMPANY  IS  BOUND  TO  FENCE. 

1  law  every  owner  bound  to  restrain  his  own  cattle 519 

oth,  ,V  land,  it  extends  only  to  those  cattle 
such  land J  >  519  520 


ANALYSIS    OF    CONTENTS.  xlvii 

3.  Company  may  agree  with  land-owner  to  fence,  and  this  will  excuse  damage 

to  cattle 520,  521 

n.  5.  Review  of  cases  upon  this  subject 520 

4.  Owner  may  recover  unless  guilty  of  express  neglect 521 

5.  Comment  upon  the  last  case 521,  522 

6.  Statement  of  case  in  Massachusetts 522 

7.  Further  comment  on  the  last  case 522,  523 

8.  Rule  of  responsibility  as  held  in  Kentucky 523 

9.  Rule  laid  down  in  Ohio 523 

10.  Rule  in  Indiana 523,524 

11.  Distinction  between  suffering  cattle  to  go  at  large  and  accidental  escape    .      524 


PART   VI. 

THE   LAW   OF  AGENCY  AS   APPLIED   TO   RAILWAYS. 
CHAPTER  XX. 

LIABILITIES   IN   REGARD   TO    CONTRACTORS,    AGENTS,    AND   SUB-AGENTS. 

SECTION     I. 
LIABILITY    FOR    ACTS    AND    OMISSIONS    OF  CONTRACTORS    AND    THEIR   AGENTS. 

1.  Company  not  ordinarily  liahle  for  the  act  of  the  contractor  or  his  servant  527,  628 

2.  But  if  the  contractor  is  employed  to  do  the  very  act,  company  is  liable  .    528,  529 

3.  American  courts  seem  disposed  to  adopt  the  same  rule 529 

4.  Distinction  attempted  between  liability  for  acts  done  upon  movable  and 

immovable  property  not  maintainable :    9 

5.  Cases  referred  to  where  true  grounds  of  distinction  are  stated 530 

6.  No  proper  ground  of  distinction  in  regard  to  mode  of  employment    .     .     .  530 

7.  Proper  basis  of  company's  liability  explained 530 

8.  So  long  as  one  retains  control  of  work,  he  is  responsible  for  the  conduct  of 

it 530,  531 

9.  A  master  workman  is  only  responsible  for  the  faithfulness  and  care  of  his 

workmen,  in  the  business  of  their,  employment 531 

10.  Railway  company  responsible  for  injuries  consequent  upon  defects  of  con- 

struction, in  the  course  of  the  work  by  a  contractor 53.1 

11.  But  ordinarily  the  employer  is  not  responsible  for  the  negligent  mode  in 

which  work  is  done,  the  contractor  being  only  employed  to  do  it  in  a 
lawful  and  reasonable  manner 631 

SECTION   II. 

LIABILITY    OF    THE    COMPANY    FOR    THE    ACTS    OF    THEIR   AGENTS    AND    SERVANTS. 

1.  Courts  manifest  disposition  to  give  such  agents  a  liberal  discretion    .     .     .       532 

2.  Company  liable  for  torts  committed  by  agents  in  discharge  of  their  duties  .       533 

3.  May  be  liable  for  wilful  act  of  servant  in  the  range  of  his  employment .    533,  534 

4.  Some  of  the  cases  hold  it  necessary  to  show  the  assent  of  the  company  .     .       534 
n.  6.  Cases  upon  this  subject  reviewed 534-538 

5.  Most  of  the  cases  adiiere  to  the  principle  of  respondeat  superior  ....    535,  536 

6.  But  it  seems  not  to  have  been  considered  that  the  company  is  present   .    537,  538 

7.  The  cases  seem  to  regard  the  company  as  always  absent 538 

8.  In  cases  where  the  company  owe  a  special  duty,  the  act  of  the  servant  is 

always  that  of  the  company 538 


xlviti  ANALYSIS   OF   CONTENTS. 

mora  ju-i  and  reasonable  to  regard  the  company  as  always  pres- 

n  of  their  agent ■      539 

.  nounl  to  ratification  of  the  acl  of  an  agent  by  a  corporation 

.11  to  define ■     •   539>  540 

11.  How  corporations  maj  be  held  responsible  for  the  publication  of  a  hbel .    .      540 
rporation  are  such  only  as  are  conferred  by  charter  .     .      540 

capital  being  paid  in  money  •     •     •     •. 540,541 

not  bound  to  supply  gas  to  all  who  require  it 541 

mpanj  ma}  become  responsible  for  false  imprisonment 541,542 

onsible  for  injury  done  by  various  animals  kept  by  them  or 

remain  about  their  Btations •     •      542 

i  ral  manager  of.a  railway  company  may  hind  them  for  medical 

lerranl  injured  in  their  employment 542 

ii  general  manager  of  a  railway,  can  give  no  valid 
j  to  his  subordinates  to  do  an  act  which  operates  as  a- fraud 
upon  the  company 542,  543 

SECTION    III. 

IV.  II  111!  «    rO   -I  K\   IHTS,   IV  NEGLECT  OF  -FELLOW  "-SERVANTS,  AND  USE  OF  MACHINERT. 

1    !•    general  no  Buch  cause  of  action  exists  against  company 543,544 

ii   there  is  any  fault  in  employing  unsuitable  servants  or  machinery, 

544-547 

t  not  liable  for  deficiency  of  help  or  for  not  fencing  road 547 

jtioned  whether  rule  applies  to  servants  of  different  grades  547,  548 
adopted  in  some  states.     Case  of  slaves.     Scotland    ....    548,  549 
mtract,  by  ship-owners,  that  ship  is  sea-worthy     ....   550,551 
ool  apply  where  servant  has  no  connection  with  the  particu- 

irork 551 

n    15  ewed  in  England,  Scotland,  and  America 549-551 

B     R<  -trating  the  English  doctrine 551,  552 

:  le  law  in  Kentucky  and  review  of  the  subject    ....   552,  553 

reviewed  by  Chief  Justice  Shaw .   554,557 

ipany  may  show  in  excuse,  that  the  damage  accrued  from  the  servant 

-  instructions .      557 

of  one  company,  not  fellow-servants  with  those  of  another 

company,  using  the  same  station,  where  the  injury  occurred   ....       557 

ih.it  the  injury  occurred  by  reason  of  the  intoxication  ofafellow- 

nt,  and  thai  an  habitual  drunkard  was,  or  ought  to  have 

known  by  the  company,  tends  to  show  culpable  neglect  on  their 

.    .    .     .         . 557,  558 

11    i  nsible   where   his   own  negligence   concurs  with  that  of 

fellow  servant 558 

SECTION   Ilia. 

PROOF   OF    NEGLIGENCE,    ETC. 

1-  W  i-   injured  on  a  railway  the  prima  facie  presumption 

•  -ulted  from  the  want  of  due  care  on  the  part  of  the  com- 

I 558,  559 

ompetent  to  prove  the  damage  occurred  without 

559 

upon  a  free  pas-,  or  in  a  baggage-car,  is  not  thereby  de- 
.aiiiM  the  company  for  injuries  received  through 
lui       ire,  provided  he  was  at  the  time  a  passenger  and 
I  lit  on  his  own  part 559 

SECTION  IV. 

FECTS    IN    HIGHWAYS    CAUSED    BY    COMPANY'S   WORKS. 

1.  Liable  for  injuries  caused  by  leaving  streets  in  insecure  condition     .     .   560,561 


ANALYSIS   OP   CONTENTS.  xlix 

2.  Municipalities  liable  primarily  to  travellers  suffering  injury 561 

3.  They  may  recover  indemnity  of  the  company 562,  563 

4.  Towns  liable  for  indictment.     Company  liable  to  mandamus  or  action    .     .       563 

5.  Construction  of  a  grant  to  use  streets  of  a  city 563 

6.  Such  grant  does  not  give  the  public  any  right  to  use  the  tracks     .     .     .   563,  564 

7.  Bound  to  keep  highways  in  repair 564 

8.  Municipalities  not  responsible  for  injuries  by  such  grant 564 

9.  Canal  company  not  excused  from  maintaining  farm  accommodations  by 

railway  interference 564 

10.  Railway  track  crossing  private  way 564,  565 

11.  One  being  wrong-doer  in  opening  company's  gates  cannot  recover     .     .     .      565 

SECTION   V. 

LIABILITY    FOR    INJURY    IN    THE    NATURE    OF    TORTS. 

1.  Railway  crossings  upon  a  level  always  dangerous 566 

2.  Company  not  excused  by  use  of  the  signals  required  by  statute    .     .     .   566,  567 

3.  Party  cannot  recover  if  his  own  act  contributed  to  injury 567-570 

4.  But  company  liable  still  if  they  might  have  avoided  the  injury     .     .     .   571,  572 

5.  If  company  omit  proper  signals,  not  liable,  unless  that  produce  the  injury         573 

6.  Not  liable  for  injury  to  cattle  trespassing,  unless  guilty  of  wilful  wrong      .       573 

7.  General  definitions  of  company's  duty 574,  575 

8.  Action  accrues  from  the  accruing  of  the  injury 575,  576 

9.  Where  injury  is  wanton,  jury  may  give  exemplary  damages 576 

10.  One  who  follows  direction  of  gate-keeper  excused 576,577 

11.  Company  responsible  for  injury  at  a  crossing  opened  by  themselves  for 

public  use 577 

12.  The  responsibility  of  railway  companies  for  damages  to  persons  crossing, 

mainly  matter  of  fact,  and  each  case  depends  on  its  peculiar  circum- 
_  stances 577,  578 

13.  Points  decided  in  late  case,  speed,  negligence,  &c 578 

14.  The  company  may  establish  and  use  proper  and  necessary  signals  in  the 

conduct  of  its  business 578 

15.  Duty  of  company  in  driving  trains  in  a  city.     Presumptions  as  to  negli- 

gence      578 

16.  Company  responsible  for  damage  caused  by  needless  blowing  of  steam- 

whistles      579 

SECTION  VI. 

MISCONDUCT    OF    RAILWAY    OPERATIVES    SHOWN    BY    EXPERTS. 

1.  The  management  of  a  train  of  cars  is  so  far  matter  of  science  and  art,  that 

%      it  is  proper  to  receive  the  testimony  of  experts 579,  580 

2.  In  cases  of  alleged  torts  company  not  bound  to  exculpate 580 

3.  So,  too,  the  plaintiff  is  not  bound  to  produce  testimony  from  experts      .     .       580 

4.  The  jury  are  the  final  judges  in  such  cases.     But  omission  to  produce  tes- 

timony of  experts  will  often  require  explanation 580,  581 

n.  6.  General  rules  of  law  in  regard  to  the  testimony  of  experts      ....   581,  582 


CHAPTER  XXL 

RAILWAY   DIRECTORS. 

SECTION    I. 

EXTENT    OF    THE    AUTHORITY    OF    RAILWAT    DIRECTORS. 

1.  Notice  to  one  director,  if  express,  is  sufficient 583,  584 

vol.  i.  d 


I  ANALYSIS   OP   CONTENTS. 

2.  Application*  to  the  legislature  for  enlarged  powers,  and  sale  of  company's 

works,  require  consent  of  shareholders       584 

MUtutional  requisites  must  be  strictly  followed 584,585 

I    |> ....     in   or  shareholders,  cannot  alter  the  fundamental  business  of  the 

company 585,  586 

erent  difficulty  of  defining  the  proper  limits  of  railway  enterprise      .   580,  587 
•pinion  of  Lord  Langdale,  and  review  of  cases  on  this  subject    .    .     ._  587-590 
can  only  be  confirmed  by  actual  and  not  constructive 

588-590 

7.  The  directors  of  a  trading  company  may  give  bills  of  sale  in  security  for 

debts  contracted  by  them 590,  591 

Bctora  cannot  bind  company  except  in  conformity  with  charter    .    .    .      591 

B    I    mpany  cannot  retain  money  obtained  by  fraud  of  directors 591 

in    But  it  must  appear  the  plaintiff  was  misled  without  his  own  fault      .     .     .      591 
mpany,  bj  adopting  act  of  directors,  are  liable  to  make  recompense   .   591,  592 

12,  A  prospectus  and  report  should  contain  the  whole  truth 592 

!      Din  ctors  cannot  issue  Bhares  to  procure  votes  and  control  corporation       .      592 

II  What  will  amount  to  fraud  in  the  reports  of  the  company 592,593 

16.  Directors  responsible  for  fraudulent  acts  and  representations 593 

I      Extent  of  power  of  directors 593 

17.  Represent  the  company  as  to  the  employe's 593 

it  of  equity  w  ill  not  require  a  useless  or  injurious  act,  even  to  remedy 

a  proceeding  ultra  vires 593 

19.  If  the  corporation  knowingly  accept  the  avails  of  a  contract  it  will  amount 

to  ratification 594 

n.  25.  Notice  estoppel 594 


SECTION  II. 

WHEN    DIRECTORS    BECOME    PERSONALLY    LIABLE. 

1.  Not  liable  personally,  for  any  lawful  act  done  as  directors 594,  595 

'2.   Mut  are  liable  upon  express  undertaking  to  be  personally  holclen    ....       595 
:;.  Are  liable  personally,  if  they  assume  to  go  beyond  their  powers    ....      596 

4.  Extenl  of  powers  affected  often  by  usage  and  course  of  business   .     .     .    596,597 

5.  But  if  contract  is  beyond  the  power  of  company,  or  not  in  usual  form, 

directors  personally  liable 597 

6.  Statement  of  case  illustrating  last  point 597,  598 


SECTION   III. 

COMPENSATION    FOR    SERVICE    OF    DIRECTORS. 

1.  In  England,  directors  of  railways  not  entitled  to  compensation  for  services  598 

L  But  the  company  may  grant  an  annuity  to  a  disabled  officer      .     .     .     .598  599 
3.  In  this  country  are  entitled  to  compensation,  in  conformity  to  the  order  of 

the  board rqq 

e  American  cases  follow  the  English  rule  '.    '.'.'.'. 599 

...  I  'Itinal  bonds  strictly  limited  to  term  for  which  executed'     ..'..'.   599,  600 


SECTION    IV. 

RECORDS    OF    THE    PROCEEDINGS    OF    DIRECTORS. 

I.  Bug  -  require  minutes  of  proceedings  of  directors  and  make  it 

■■  "»>l"  ions  in  favor  of  their  containing  all  that  passed!     .'     .'     '.'.'.'.       600 
3.  Company  will  ratify  unauthorized  act  of  directors  by  acquiescence     ...       600 


ANALYSIS   OP   CONTENTS.  li 

SECTION    V. 

AUTHORITY  OF  DIRECTORS  TO  BORROW  MONET,  AND  BUT  GOODS. 

1.  Authority  of  directors  to  bind  company,  express  or  implied 601 

2.  General  agent  will  bind  company  within  scope  of  his  duties.     Directors 

presumed  to  assent  to  his  contracts 601,  602 

3.  Contracts  under  seal  of  company  prima  facie  bind  them 602,603 

4.  Strangers  must  take  notice  of  general  want  of  authority  in  directors,  but 

not  of  mere  informalities 603 

5.  Cannot  subscribe  for  stock  of  other  companies 603,  604 

6.  May  borrow  money  if  requisite 604 

7.  How  far  directors  may  bind  company  by  accepting  land  in  payment  of  sub- 

scription      604 

SECTION    VI. 

DUTT    OP    RAILWAT    DIRECTORS    TO    SERVE    THE    INTERESTS    OF    COMPANT. 

1.  General  duty  of  such  office  defined 605 

2.  Claim  for  secret  service  and  influence  with  directors 605 

3.  Opinion  of  Justice  Hoffman  upon  the  legality  of  such  contracts     .     .     .    606-609 
n.  3.  Cases  reviewed  upon  the  subject  of  secret  services 606-608 

4.  Directors  cannot  buy  of  themselves  for  the  company.     What  amounts  to 

ratification 609 

5.  The  point  further  illustrated.     Authority  of  directors 609,610 

6.  Purchase  of  shares  to  buy  peace 610 

7.  Director  may  loan  money  to  company 610 

8.  Director  de  facto  sufficient 610 

9.  Hotel  company  may  lease  premises  to  others 610 

10.  Director  cannot  recover  for  work  done  for  company 611 

11.  Contract  of  projector  not  binding  on  company 611 

12.  Director  cannot  act  where  interested 611 

13.  Court  will  not  act  on  petition  of  member  who  is  a  mere  puppet  for  others  .  611 

14.  Cannot  charge  costs  of  libel  suit  to  company 612 

15.  Directors  responsible  for  wrongful  acts  of   each  other,  if  known  at   the 

time 612 

16.  Right  of  courts  to  appoint  receivers  and  take  the  management  of  corpora- 

tions        612 

17.  Directors  personally  responsible  for  money  expended  in  raising  the  prices 

of  shares 612,  613 

SECTION    VII. 

RIGHT    TO    DISMISS    EMPLOTES.  RULE    OF    DAMAGES,    WHEN    DONE    WRONGFULLT. 

1.  Some  cases  hold,  that  if  wrongfully  dismissed  may  recover  salary      .     .     .      613 

2.  English  courts  do  not  favor  this  view.     Case  stated  by  English  judges    .    613,  614 

3.  The  American  cases  have  sometimes  taken  the  same  view 614 

4.  Where  the  contract  provides  for  a  term  of  wages,  after  dismissal,  it  is  to 

be  regarded  as  liquidated  damages 615 

5.  Statute  remedy,  in  favor  of  laborers  of  contractors,  extends  to  laborers  of 

sub-contractors 615 


lii  ANALYSIS   OF   CONTENTS. 

CHAPTER  XXII. 

kRRAXGEMENTS    BETWEEN    DIFFERENT   COMPANIES. 
SECTION    I. 

I  |   tg]  i,     iST>    BIMIl  Ut    CONTBA(    rS,    KEQ1   IKK    THE    ASSENT   OF   LEGISLATURE. 

1     By  I'i    lish  Btatutes  one  company  may  pass  over  road  of  another,  but  con- 

'   tract  binding •••••■      616 

•  cannot  transfer  duty  of  one  company  to  another,  without  legislative 

grant • •    • 617 

ina]  company  liable  to  public,  after  such  lease.     But  lessee  not  ex- 

.     .    " 618-620 

•  equity  enjoin  companies  from  leasing,  without  legislative  consent      620 

contracts,  made  by  legislative  grants,  are  to  he  carried  into  effect      620 

6    Majority  of  company  may  obtain  enlarged  powers,  with  new  funds    .     .  620,621 

the  majority  may  defend  against  proceedings  in  legislature  ....  621,  622 

>    Legislativi  sanction  will  not  render  valid  contracts  ultra  vires 622 

[way  company  cannot  assume  duties  of  terry,  without  legislative  grant        622 
-rant  to  a  railway  of  the  implied  right  to  establish  a  ferry  over  a  pub- 
lic river  directlj  beyond  the-  terminus  of  its  road,  does  not  extend  the 

risibility  of  the  company  to  the  ferry .     .      622 

11.  Such  a  terry  may  become  an  encroachment  upon  another  by  carrying  pas- 

rs  gratuitously •     •   622,623 

12.  The  -rant  to  a  railway  of  a  terry  in  express  terms  will  not  authorize  them 

ry  any  thing  except  passengers  and  freight  passing  over  their  line       623 

13.  Legislative  confirmation  of  a  railway  and  its  location  will  not  affect  its  past 

defaults 623 

SECTION    II. 

M>  l-lll     0]     CONTRACTS   OF    CORPORATIONS   BEING    UNDER   SEAL. 

1.  The  English  courts  manifest  great  reluctance  to  abandon  the  former  rule 

of  law  on  this  subject 623 

11.2.  Extended  review  of  the  English  and  some  of  the  American  cases  .     .    623-630 

:e  i"  later  decisions 624-630 

tat  amounts  to  a  seal  according  to  modern  use 630,  631 

SECTION   III. 

Dl   H     "I     Tilt.    RESPECTIVE    COMPANIE8    TO    PASSENGERS   AND    OTHERS. 

.  bound  to  keep  road  safe.     Act  of  other  companies  no  excuse  .    631,  632 
-•-  hold  tl.  era  can  only  sue  the  company  carrying  them       632 

.:    Passenger-carriers  bound  to  make  landing-places  safe 633,634 

1    1'-.'   those  who  ride  upon  freight  trains,  by  favor,  can  only  require  such 

security  a-  i>  usual  upon  such  trains 635 

•  all  property  hound  to  keep  it  in  state,  not  to  expose  others  to 

634 

Is  to  railways,  where  persons  are  rightfully  upon  them  .    634,  635 
y  of  privity  of  contract  existing  reviewed     .    632-634 
■   i  public  works  is  bound  to  keep  them  safe  for  use  .   635,636 
one  presumptively  responsible  to  the  same  extent  as  natural  per- 

u  the  same  situation 636 

upany  drawing  the  cars  of  a  connecting  road  over  its  own 
line  is  reponsible  as  a  common  carrier 636 


ANALYSIS   OF   CONTENTS.  llii 

SECTION   IV. 

EXTENT    OF    THE    POWERS    AND    DUTIES    OF    LESSEES    OF    RAILWAYS. 

1.  Statement  of  the  points  in  an  important  English  case 637-640 

2.  Lessees  of  railways  liable  for  their  own  acts,  and  for  many  acts  of  lessors  640,  641 

SECTION   V. 

CONTRACTS    BETWEEN    DIFFERENT    COMPANIES    REGULATING    THE    TRAFFIC. 

1.  Such  contracts  generally  held  valid  and  binding 641,  642 

2.  Arrangements  to  avoid  competition  valid 642 

3.  Construction,  force,  and  operation  of  contracts  between  different  railways  642,  643 

SECTION  VI. 

WHAT    IS    REQUISITE    TO    CONSTITUTE    A    PERPETUAL    CONTRACT    BETWEEN    DIFFER- 
ENT   RAILWAY    COMPANIES. 

1.  Railway  connections  commonly  temporary 643 

2.  The  matter  is  one  mainly  of  public  convenience,  and  so  subject  to  legisla- 

tive control 643 

SECTION   VII. 

CONTRACTS    BY    RAILWAYS    ULTRA    VIRES,    AND    ILLEGAL. 

1.  Contracts  to  make  erections  not  authorized  by  their  charter 644 

2.  Contracts  to  indemnify  other  companies  against  expense 644,  645 

3.  Contracts  to  divide  profits 645 

4.  Illustration  of  the  doctrine  ultra  vires 645,  646 

5.  How  far  railways  may  accept  bills  of  exchange.     Railway  companies  not 

empowered  to  make  bills  and  notes  except  from  necessity      ....   646,  647 

6.  Contracts  ultra  vires  cannot  be  specifically  enforced  against  the  directors     .       647 

7.  Money  unlawfully  borrowed  company  must  refund 647 

8.  How  far  acts  ultra  vires  confirmed  by  acquiescence 647,  648 

9.  Company  not  restrained  from  making  unlawful  payments  on  the  ground  of 

policy 648 

10.  Decision  rests  on  no  safe  grounds 648 

11.  It  seems  too  much  like  paying  black-mail  to  buy  peace 648,  649 

1.  The  power  of  a  receiver  to  sue  in  the  name  of  the  corporation.     .     .     .       649 

2.  Foreign  railway  corporation  acquired  no  prerogative  rights  by  leasing  a 

portion  of  the  track  of  a  domestic  railway 650 

3.  Statement  of  the  contract  and  ground  of  holding  it  void,  as  being  ultra 

vires 650 

4.  Further  reasons  why  such  contract  cannot  be  specifically  performed 

here 650 

n.  3.  Comments  upon  the  preceding  propositions 650-652 

SECTION   VIII. 

COMPANIES    EXONERATED    FROM    CONTRACTS,    BY    ACT    OF    LEGISLATURE    .       .     651,  652 

SECTION  IX. 

WIDTH  OF  GAUGE.  JUNCTION  WITH  OTHER  ROADS. 

1.  Where  the  act  requires  broad  gauge,  does  not  prohibit  mixed  gauge  .     .     .       652 

2.  Permission  to  unite  with  other  road,  signifies  a  road  cle  facto     ....    652,  653 


Jiv  ANALYSIS    OF    CONTENTS. 

lity  win  sometimes  enjoin  company  against  changing  gauge    ....  653 

I  ,,,  make  gauge  of  the  companies  the  same,  although  contrary  to 

[aw  of  state,  at  its  date,  may  be  legalized  by  statute    .......  653 

5   The  import  and  construction  of  the  terms  "  railway  connection    ....  6o3 


PART   VII. 

Till     LAW   OF  MANDAMUS    AND    OTHER   PREROGATIVE  REM- 
EDIES    AS    APPLIED   TO   RAILWAYS. 

CHAPTER  XXIII. 

MANDAMUS. 

SECTION  I. 

GENERAL   RULES    OF    LAW    GOVERNING    THIS    REMEDT. 

1.  Regarded  as  a  supplementary  remedy 657,658 

■j    Mode  of  procedure 658 

(1.)  Matter  ol  discretion 658 

Alternative  writ 659 

ings  in  most  of  the  American  courts 659 

l    I     glish  courts  do  not  allow  application  to  be  amended 660 

English  statute  has  essentially  simplified  proceedings 661 

le  of  trying  the  truth  of  the  return 661,662 

-t  in  the  discretion  of  court 662 

•  of  service 662 

9.  By  late  English  statutes  mandamus  effects  specific  performance     ....  663 

SECTION  IT. 

PARTICULAR    CASES    WHERE     MANDAMUS    LIES    TO    ENFORCE    DUTY    OF    CORPO- 
RATIONS   664,  665 

SECTION  III. 

SL1VDAJTD8  THE  APPROPRIATE  REMEDT  TO  RESTORE  OFFICERS  AND  MEMBERS  OF 
CORPORATIONS  TO  nil,  DISCHARGE  OF  THEIR  PROPER  FUNCTIONS,  WHERE 
Till  V  II  WK  BEEN  DEPRIVED  OF  THE  SAME  THROUGH  THE  AGENCY  OF  THE 
<  "KIOUATION. 

1.  The  writ  formerly  granted  only  to  restore  to  public  office 666-669 

inted  in  all  cases  where  of  value  and  sufficiently  permanent  .     .   670,  671 

lable,  where  election  annual  and  facts  traversed 671 

.imant  must  have  permanent  and  vested  interest 671,672 

SECTION    IV. 

MANDAMUS  TO  COMPEL  COMPANY  TO  COMPLETE  THEIR  ROAD. 

1     ''       -     '   »urtl  hive  required  this  upon  a  general  grant 672,673 

•    these   cases   overruled.      Not  required   now,  unless   under  peculiar 

circumstances     .    .    .    .    , 673  674 

3.  Recent  case  in  New  York  Court  of  Appeals     .     .     .     .     .     .     .     .     .     .     .     '674 


ANALYSIS   OP   CONTENTS.  lv 

SECTION    V. 

IN    WHAT    CASES    THIS    IS    THE    PROPER    REMEDY. 

1.  Where  the  act  is  imperative  upon  the  company  to  build  road 675 

2.  Mandamus  more  proper  remedy  than  injunction 675,676 

3.  Commissioners  of  public  works  not  liable  to  this  writ 676 

4.  Public  duties  of  corporations  may  be  so  enforced 676,  677 

5.  Facts  tried  by  jury.     Instances  of  this  remedy 677 

6.  Cannot  be  substituted  for  certiorari,  when  that  is  taken  away 678 

7.  Requiring  costs  to  be  allowed 678 

8.  Other  instances  of  its  application 678 

9.  Lies  where  the  duty  is  clear,  and  no  other  remedy 678,  679 

10.  Not  awarded  to  control  legal  discretion 679,  680 

11.  Does  not  lie  to  try  the  legality  of  an  election 680 

12.  Lies  to  compel  transfer  of  stock 681 

13.  Where  a  railway  company  omit  to  have  damages   estimated  under  the 

statute,  they  may  be  compelled  to  do  so  by  mandamus 681 

SECTION  VI. 

PROPER  EXCUSES,  OR  RETURNS  TO  THE  WRIT. 

1.  Company  may  return  that  powers  had  expired  at  date  of  writ  ....   681,  682 

2.  May  show  want  of  funds  to  perform  duty 682,683 

3.  But  cannot  show  that  road  is  not  necessary,  or  would  not  be  remunerative       683 

4.  May  quash  part  of  return,  and  require  answer  to  remainder 683 

5.  Counsel  for  writ  entitled  to  begin  and  close 683 

6.  Cannot  impeach  the  statute  in  reply  to  the  writ 683 

7.  Peremptory  writ  cannot  issue  till  whole  case  tried 683,  684 

8.  Will  not  quash  return  summarily 684 

9.  No  excuse  allowed  for  not  complying  with  peremptory  writ 684 

SECTION  VII. 

WHERE    THE    ALTERNATIVE  WRIT    REQUIRES    TOO    MUCH,  IT    IS    BAD,  FOR  THAT 

WHICH  IT  MIGHT  HAVE  MAINTAINED 684,  685 

SECTION    VIII. 

ENFORCING    PAYMENT    OF    MONEY    AWARDED  AGAINST    RAILWAYS. 

1.  The  enforcement  of  payment  of  money  against  corporations  by  manda- 

mus    685 

2.  Where  debt  will  lie  the  party  not  entitled  to  mandamus 686 

3.  Mandamus  proper  to  compel  payment  of  compensation  under  statute      .   686,  687 

4.  Mandamus  not  allowed  in  matters  of  equity  jurisdiction 687 

5.  Contracts  of  company  not  under  seal  enforced  by  mandamus 687 

6.  Where  a  statute  imposes  a  specific  duty,  an  action  will  lie 688 

SECTION  IX. 

THE    WRIT    SOMETIMES    DENIED    IN    MATTERS    OF    PRIVATE    CONCERN. 

1.  Mandamus  denied  to  compel  company  to  divide  profits 688,  689 

2.  Allowed  to  compel  production  and  inspection  of  corporation  books     .     .     .       689 

3.  Will  compel  the  performance  of  statute  duty,  but  not  to  undo  what  is 

done 689,  690 


lvj  ANALYSIS   OP   CONTENTS. 

|    Allowed  to  compel  the  production  of  the  register  of  shares,  or  the  registry 

of  the  Qame  of  the  owner  oi  shares,  and  in  other  cases     .    .    •    •    •    •      bJU 

.,  i-  £  the  common  .  I  «  restoring  persons  to  corporate  offices  of 
which  they  are  unjuBtly  deprived      

SECTION  X. 

nngUKIDl     LOST  B1     ACQUIESCENCE.  — PROCEEDING   MUST   BE   BONA   FIDE. 

1    Remedy  must  he  sought  at  earliest  convenient  time      . 692,  693 

irts  will  not  hear  such  case,  merely  to  settle  the  question     . .    .    ...      wa 

|.   l„  New  York  may  be  brought  any  time  within  statute  of  limitations  ...      oJd 

SECTION    XL 

HANDAM1  S    ALLOWED    WHERE    INDICTMENT    LIES. 

1.  Party  may  have  mandamus  sometimes  where  act  is i  indictable 694 

i  Allowed  to  compel  company  not  to  take  up  their  rails 694 

:;.  Will  not  lie  where  there  is  other  adequate  remedy 6J& 

section  xn. 

JUDGMENT    UPON    PETITION    FOR    MANDAMUS    REVISABLE    IN    ERROR    .       .       695 


CHAPTER  XXIV. 

WRIT   OF   CERTIORARI. 

SECTION  I. 
TO    REVISE    PROCEEDINGS    AGAINST    RAILWAYS. 

-    to  bring  ii])  unfinished  proceedings,  or  those  not  according  to  the 
common  law 696,  697 

2.  This    writ    is  one  of  very   extensive    application,   unless   controlled    by 

697 

3.  Where  the  case  is  fully  heard  on  the  application,  judgment  may  be  en- 

698 

SECTION  II. 

WHERE    I  llllli;    IS   AN   EXCESS   OF   JURISDICTION 698 

SECTION  III. 

JURISDICTION    AND    MODE    OF    PROCEDURE. 

'    Lii  of  irregularity,  unless  taken  away  by  statute 699 

aisitione  before  officers,  not  known  in  the  law 699 

rit  is  matter  of  discretion.     Defects  not  amendable    ..     .    699,700 
allowed   for   irregularity   in   proceedings,   or   evidence,   or    form   of 

"<"t 700 


ANALYSIS   OF    CONTENTS.  lvii 

CHAPTER  XXV. 

INFORMATIONS   IN    THE   NATURE   OF    QUO   WARRANTO. 

1.  General  nature  of  the  remedy 701,702 

2.  Its  exercise  confined  to  the  highest  court  of  ordinary  civil  jurisdiction    .     .  702 

3.  In  the  English  practice,  this  remedy  not  extended  to  private  corporations  .  702 

4.  In  this  country  it  has  been  extended  to  such  corporations 703 

5.  This  remedy  will  only  remove  a  usurper,  but  not  restore  the  one  right- 

fully entitled 703 

6.  Will  not  lie  where  railway  company  open  part  of  their  road 704 

7.  Nor  where  company  issue  stock  below  par,  or  begin  to  build  road  before 

subscription  full ' 704 

8.  Form  of  the  judgment 704,705 

9.  Rules  in  regard  to  taxing  costs 705 

10.  Used  to  test  corporate  existence  and  power 705 

11.  Penalties   provided   by   charter   cannot   subsequently  be    increased   to   a 

forfeiture 705 

12.  But  a  grant  of  corporate  franchises  may  be  annulled  when  its  purposes 

have  failed 705,  706 

13.  Scire  facias  the  proper  remedy  to  determine  forfeiture 706 

14.  Insufficient  excuses  for  failure  to  repair  a  turnpike  road 706 

15.  This  remedy  does  not  supersede  any  equitable  redress 706 


TABLE     OF     CASES. 


PAGE 

A.  &  N.  L.  R.  Co.  v.  Smith  186 

A.  &  S.  Railw.  v.  Baugh  507 

v.  Carpenter  278 

Aberdeen  Railw.  v.  Blakie  92 

Abervstwith  Railw.,  in  re  51 

Abraham  v.  Great  Northern  Railw.  335 

v.  Reynolds  556 

Ackland  v.  Lewis  121 

Adair  v.  Shaw  182 

Adams  v.  Ferick  162 

v.  Frye  135 

v.  London     &     Blackwall 

Railw. 
v.  Saratoga  &  Wash.  Railw. 

811,  315 
Adderley  v.  Storm  &  Bailey  148 

Adler  v.  Milw.  Patent  Brick  Co.  183 
Adley  v.  Whitstable  Co.  96 

Agar  v.  Athenaeum  Life  Ass.  Co. 

v.  Regent's  Canal  Co. 
Agricultural  Bank  v.  Burr 

v.  Wilson 
Agricultural    Branch     Railw.      v 

Winchester 
Aiken  v.  Western  Railw. 
Alabama  &  Tenn.  Railw.  v.  Kidd 
Albany  N.  Railw.  v.  Lansing 

283,  311 
Aldham  v.  Brown  50 

Aldred  v.  North  Midland  Railw. 

Co.  45,  409 

Aldrieh  v.  Cheshire  Railw.  305,  350 
Aldridge  v.  Great  Western  Railw.  474 
Alexander  v.  Crystal  Palace  Railw.  370 
Alexandra  Park  Co.,  in  re  459 

Algeo  v.  Algeo  614 

Alger  v.  Miss.  &  Mo.  Railw.  499 

Alleghany  v.  Ohio  &  Pennsylvania 

Railw.  320 

Alleghany  City  v.  McClurkan  590 


387 


603 
208 
125 
125 

188 
623 
532 

277, 


Allen  v.  Graves  137 

v.  Hay  ward  529 

v.  Montgomery  R.  177 

Allyn  v.  Boston  &  Albany  Railw.     569 

v.  Prov.  W.  &  B.  Railw.         287 

Alton  Railw.  v.  Nort     ott  436 

Ambergate,  N.  &  Boston  &  E.  J. 

R.  v.  Coulthard  192 

v.  Midland  Railw.  350 

v.  Mitchell  159,  160 

Ambergate  River  v.  Norcliffe  192 

American    Railw.     Troy    Co.     v. 

Haven  671 

Ammermon     v.    Wyoming    Land 

Co.  564 

Anderson  v.  Kerns  Draining  Co.        73 
v.  N.  &  R.  Railw.  73 

v.  Ohio  &  Miss.  Railw.     179 
Andover,  Case  of  660 

Andover  Turnpike  v.  Gould  174 

v.  Hay  174 

Andrews  v.  City  of  Portland  428 

v.  Ohio  &  Miss.  Railw.      187 
Androscoggin  Railw.  Co.  v.  Rich- 
ards 104 
Androscoggin  &  Kenebec  Railw.  v. 

Androscoggin  Railw.  643 

Anglo- Cahfornian    G.   M.    Co.    v. 

Lewis  180 

Anonymous  63,  66,  690 

Anstruther  v.  East  Fife  Railw.  675 

Anthony  Street,  matter  of  287 

Antisdel  v.  Ch.  &  N.  W.  Railw.      518 
Appleby  v.  Meyers  434 

Appleford's  case  679 

Applegate  v.   Lexington    &   Ohio 

Railw.  315 

Armington  v.  Barnet  246,  272 

Armstrong  v.  Burnet  162 

v.  Waterford  &  Limer- 
ick Railw.  383 


Ix 


TAHLE  OF  CASES. 


Anu.1.1  v.  Hudson  R.  Railw.     274 
I  .\  or  of  Poole       86 

627,  628 

1 2 1 

Arthur  r   Commercial  Bank  266 

Ashby  d    Eastern  Railw.  286,  287,  355 

iula    >v    New    I..    Railw.    i>. 

Smith  69,  218,  til 

A  -  lit  •  'ii  r.  Lord  Longdale  1 1 9 

Ashwoi  tli  o.  M.inw  i\  5  1 1 

Aspinwall  v.  Ohio  &  Miss.  Railw.     214 

v.  Yates  .r>  15 

Aston  241 

M  v.  I'll'  nix  Bank  67'.) 

Athenamm    Life    Lis.    <  '<-..,   in   re 

Sheffield  153 

Atkinson     v.     Marietta     &    Cin. 

Railw.  281,413 

Atlantic  Cotton  Mills  r.  Abbott        189 
Atlantic  &  Ohio  R.  R.  v.  Sullivant 

69,  256 
A.  &  St.  L.  Railw.  v.  Commission- 

t  <  uinli  irland  ( iounty   286,  293 
Atlee  r.  Backhouse  466 

Attala  Co.  r.  Grant  679 

Att'y-Gen.  d.  Bir.  and  Oxford  J.R.  675, 

704 
irporation  of  Rye      67 
r.  Davy  90 

r.  Detroit  &  Erie  Plank- 
Road  Co.  lis 
v.  Dorsel  Railw.               284 
v.  E.  H.  &  S.  Railw.       593 
v.  Earl  of  Lonsdale         319 
v.  Great  N"orth'n  Railw.  67, 
1 55 
v.  Hudson  River  Railw.  337 
v.  Leaf                            702 
''■  London     &    South- 
ampton Railw.         425 
''■  Nichol                          352 
S    Railw.                 244 
v.  Sheffield    Gas    Con- 

sumers1  <  !o.  352 

'ens  ;;n 

v.  Tewkesbury  A- (ireat 

Malvern  Railw.  11,  413 

Railw.  v.  McElmurry  567 

Annua  Branch  Railw.  v.  Grimes      194 

West  411 

Austin,  ex  />mle  677 

Bank  ofc.  Cheny  568 

1  Mail  Co.  v.  Mar- 

626 

Williams  697 

:    E.  Railw.  632 

Mount  195,  198 

>-.  Thomson  168 

■   I  ■    ■  .  Railw.        95 


B. 


B.  <).  &  M.  Railw. v.  Smith  _  262 

Babcock  v.  The  Western  Railw.     235, 

341 

Backhouse  v.  Bonomi  576 

Backus  r.  Lebanon  273,276 

Bagge,  ex  parte  123 

Bagnall  v.  London  &  N".  W.  Railw.    358 

Bagshaw  v.  Eastern  Union  Railw.       8 

Bagshawe  v.  Same  30,  33 

Bailey  v.  Hollister  214 

v.  Mayor  of  New  York         346 

v.  Phil.  &  Wil.  Railw.  '337 

v.  Western  Vermont  R.         458 

Baily  v .  De  Crespigny  358 

Baker,  ex  parte  591 

v.  Johnson  265,  299 

Balch  v.  N.  Y.  &  O.  M.  Railw.         615 

Baldwin  v.  Western  Railw.  575 

Bale  v.  Clelland  592 

Balls  v.  Met.  Board  of  Works  369 

Bait.    &c.    Co.    v.    Northern    &c. 

Railw.  698 

Baltimore  City  Passenger  Railw.  v. 

Wilkinson  116 

Bait.  &  O.  Railw.  v.  Bahrs  578 

Baltimore  &  Ohio  R.  v.  Blocher       106 

v.  Breinig  569 

v.  Lamborn  508 

v.  Thomson  307,  363,  581 

v.  Wheeling  212 

Baltimore  &  Susq.  Railw.  v.  Mus- 

selman  210 

v.  Nesbit  256,  301 

v.  Woodruff  476,  575 

Banet  v.  Alton  &  Sangamon  Railw. 

176,  185,  211 
Bangor  Bridge  Co.  v.  McMahon     175, 

177 
Bangor     House     Proprietary     v. 

Hinckley  174 

Bangor  &Pisc.  R.  v.  Harris  271 

Rank  v.  McChord  135 

Bank  of  Augusta  v.  Earle  63 

of  Australasia  v.  Cherry  596 

of  Columbia  v.  Patterson  430 
of  Commonwealth  v.  Curry  135 
of  Manchester  v.  Allen  76 

of  Metropolis  v.  Guttschlick  430 
of  Middlebury  v.  Edgei'ton  4 
of  Pennsylvania  v.  Common- 
wealth 410 
of  South  Carolina  v.  Gibbs  65 
of  U.  S.  v.  Dandridge  76 
v.   The   Planters1    Bank   of 

Georgia  59,  65,  66 

of  Utica  v.  Smalley  125 

of  Waltham  v.  Waltham  121 


TABLE    OP    CASES. 


lxi 


Bannor  v.  Baltimore  &  Ohio  R.         578 
Barber  v.  Essex  562 

Barclay  v.  Howard's  Lessee  268 

Bardstown  &  Lou.  Railw.  v.  Met- 
calf  59,  251 


Baigate  v.  Shortridge 
Barker,  ex  parte 

v.  Midland  Railw. 

v.  North  Staffordshire 
Railw. 

v.  Troy  &  Rutland  R 


12:3 

K6 

101 


369 

414, 

431,  459 

691,  702 

155 

3,  249 

142 


Barlow,  in  re 
Barnard  v.  Bagshaw 

v.  Wallis 
Barned  v.  Hamilton 
Barnes  v.  Ward  634 

Barnesley  Canal  Co.  v.  Twibill        351 
Barret  v.  Great  N.  Railw.  104 

Barrett,  ex  parte  157 

v.  Maiden      &     Melrose 

Railw.  542 

v.  Stockton  &  D.  Railw.     253 

Barrington  v.  Miss.  Central  Railw.  119 

Barron  v.  Baltimore  247 

v.  Eldridge  4«3 

Barrows  v.  Mass.  Medical  So.  6'J1 

Barry  v.  Croskey  596 

v.  Merchants1  Exchange  Co. 

117 
619 
531 
ISO 


618. 


Barter  v.  Wheeler 
Bartlett  v.  Baker 
Barton's  case 
Barton  v.  Port  Jackson,  &c.  Plank- 
Road  Co.  589 
Bass  v.  Chicago,  Bur.  &  Quincy 

Railw.  Co.  480,  500 

Bassett    v.     Norwich    &    Nashua 

Railw.  550 

Bateman  v.  Mid-Wales  Railw.  646 

Bates   v.    Boston   &  N.   Y.    Cen. 

Railw.  631 

v.    New  York  Ins.  Co.  124 

Bath  River  Navigation  Co.  v.  Wil- 
lis 256 
Batty  v.  Duxbury                                  561 
Battve  v.  Gresley  91 
Baxter  v.  B    &.  W.  Railw.                511 
Bayley  v,  Manch.  S.  &  L.  R.            537 
v.  Wilkins                                  139 
Bayliffe  v.  Butterworth                        139 
Bavntine  v.  Sharp                                 474 
Beach  v.  Smith                             119,  203 
Beardmer   v.    London     &    North- 
western Railw.                                  406 
Beattie  v.  Lord  Ebury                        596 
Beaty  v.  Knowler                                253 
Beaufort  v.  Swansea  Harbor  Trus- 
tees                                                    399 


Beaulieu  v.  Finglam  474 

Beckett  v.  Midland  Railw.        354,  389 
Bcckitt  v.  Bilbrough  8 

Bcckwith  v.  Sydbothain  581 

Bedford  R.  Co.  v.  Bowser         192,  218 
Beebe  v.  Ay  res  110 

Beekinan    v.     Saratoga     &     Sch. 

Railw.  .  245 

Beene  v.  Cahawba  &  M.  R.  176 

Beers  v.  Housatonic  Railw.  494 

Beisigel  v.  New  York  Central  Rail- 
way 577 
Belfast   &    Angelica    Plank-Road 

Co.  v.  Chamberlain  74 

Belli'.  Railw.  v.  Suman  486 

Bellf.  &  Iowa  R.  C.  v.  Bailey  496 

Bell  v.  Francis  12 

v.  Cough  .  336 

v.  Hull  &  Selby  Railw.      343,  355 

v.  London  &  N.  W.  Railw.       584 

v.  Midland  Railw.  420 

Belmont  v.  Erie  Railw.  612 

Beman  v.  Rurford  81,  620 

Bemfclly  v.  Green  Bay  Co.  280 

Bemis  v.  C.  &  P.  Railw.  519 

Bend  v.  Susquehanna  Bridge  Co.        70, 

195 
Benedict  v.  Coit  317 

Bennett,  ex  parte  178 

Bennett  v.  C.  &  A.  Railw.  698 

v.  Button  HO 

v.  Railway  285,  294 

Benson,  ex  parte  679 

Bentinck  v.  Norfolk  Estuary  Co.     260, 

408 
Bermingham  v.  Sheridan  143 

Beverly  v.    Lincoln  Gas  Light  & 

Coke  Co.  430,  624,  628 

Bigelow  v.  Miss.  Central  &  Tenn. 

Railw.  Co.  296 

Bill  v.  Darenth  Valley  Railw.  629 

v.  Sierra  Nevada  L.  W.  Co.        67 

Binney's  case  120 

Binney  v.    Hammersmith    &   City 

Railw.  Co.  374 

Birkenhead  R.  v.  Pilcher  204,  205 

Birkenhead,   L.   &  Ch.   Railw.  v. 

Webster  192 

Birmingham,  B.  &  Th.  J.  Railw. 

v.  Locke  8,  168,  178,  195 

Birmingham  &  Oxford  J.  Railw.  v. 

Reg.  373 

Bish  v.  Johnson  210 

Bishop  v.  North  2,  3 

Bishop    of    Winchester    v.    Mid- 
Hants  Railw.  301,  384 
Bissell  v.   Mich. 'So.   &   N.    Ind. 

Railw.  620 

Black  River  Railw.  v.  Clarke     73,  201 


lxii 


TAHLE  OF  CASES. 


Black   River  A    Dtica    Railw.  v. 
Barnard  '3 

■  •■il  d    Wiswall 

:1)V  468 

I  529 

r.  Rich  268 

birat  531 

Blakemore   p.   Bristol    &    Exeter 

lw.  ^         633 

p.    Glamorganshire     Canal 

Co.  HO,  668,669,670,  673 

Bland  p.  Crowley  31,  40 

Bligfa  P.  l'.nnt     '  120 

Hosmer  259 

p.  Pass.  River  Railw.  348 

Blodgetl  r.  Morrill  171,  172 

Lowell&  Nashua  Railw.    363 

Bluod^ood  r.  M.  &  II.  Railw.         246, 

258,  285,  297,  299,  323,  533 

Blount  p.  Hipkina  144,  162 

Bloxam,  ex  parte  17 

Bluck  p.  Mullalue  610 

Blundell  p.  Winsor  122 

i  p.  ( larpenter  150 

Iman  p.  (lore  135 

Bog  Lead  Co.  p.  Montague  131 

p.  Midland  Railw.  361 

Bonaparte   p.  Camden  &  Amboy 

Railw.  58,  285,  297 

II 1  P.  Morse  .">y? 

Bonner  p.  v  691 

I;mi.  &  Bur.  Railw.    460,  461 
Booker,  ex  parte  173 

Boothby    p.    Androscoggin   &  K. 

Railw.  <  o.  360 

Bordentown  &  South  A.  Turnpike 

<  lamden  &  Amboy  Railw.  495 

Boron;:!,  of  Sewickley  696 

luel  p.  Shortridge  122 

■  k     i'.     North     Staffordshire 
Railw.  267 

Bost  ii  &  Lowell  Railw.  v.  Boston 
&  M  line  Railw.  643 
p.  Proctor  109 
•  ni  &  Lowell  Railw.  274 
Boston   A:    Maine    Railw.    v.   Bab- 
cock  241 
v.  Bartlett                      216,  242 
r.  City  of  Lawrence  420 
ounty  of  Middlesex  313 


V, 


B 


»v  1'.  l;  I,  u.  ,-.  Magruder 
p.  Mi. Hand  Railw.  Co. 


345 

298, 
406,  410 
306 
476 


1 '•■•'.  p.  '  lompton 
p.  Woodruff 
Boston  Type  &  Mereotype  Foun 
dry  *-.  Spo  mer  73 

n  Water  PowerCo.  v.  Boston 
,v  \V   r.  ■  iter  Railw.       272,  273,  336 


Boston  &  Worcester  Railw.  v.  Old 

Colony  &  F.  R.  Railw.  293 

Boswell  v.  Townsend  464 

Boughton  v.  Carter  344 

Boultoii  v.  Crowther  317 

ex  parte  v.  Skelehley  164 

Bowen,  ex  parte  14 

Bowlby  v.  Bell  138 

Bowman  v.  Troy  &  Boston  Railw.   496 
v.  Wathen  342 

Bowring  v.  Shepherd  138 

Boyd  v.  Chesapeake  &  Ohio  Canal 

Co.  584 

v.  Negley  271 

Boyle  v.  Phil.  &  Reading  Railw.       467 
Boynton  v.  Peterboro'   &   Shirley 

Railw.  Co.  297,  362 

Brace  v.  New  York  Central  Railw.  513 
Bra-ken  v.  Rushville  Gravel  Road 

Co.  236 

Bradley  v.  Boston  &  Maine  Railw.  566 
v.  Holdsworth  120 

v.  London     &      N.     W. 

Railw.  Co.  398 

v.  N.  Y.  &  N.   H.  Railw.    60, 

246,  253,  312,  318 

Bradshaw,  in  re  295 

v.  E.  &  W.  I.  Docks  & 

Birm.  J.  Railw.        379 

v.  Rogers  248 

Brainard  v.  Clapp  269 

v.  Conn.  River  Railw.    242,  316 

Brand    v.    Hammersmith    &   City 

Railw.  Co.  309,  354,  357 

Branin  v.  Conn.  &  Pass.  R.  R.         464 
Branson  v.  Philadelphia  239,  281 

Braynton  v.  London  &  Northwest- 
ern Railw.  407 
Breed  v.  Eastern  Railw.  379 
Breedlove  v.  M.,  &c.  Railw.  74,  192 
Brewer  v.  Boston  Theatre  596 
Brewster  v.  Hartley  86,  173 
Briekett  v.  Morris  345 
Bridges    v.    Wilts,     Somerset,    & 

Weymouth  Railw.  385 

Briggs,  ex  parte  151,  679 

v.  Ferrell  618 

v.  Taylor  524,  547,  567 

Brigham  v.  Agricultural  Branch  R.  411 
Bright  p.  Hutton  15 

Brightwell  v.  Mallory  121 

British    Provident   Life  Ins.   Co., 

ex  parte  Grady  648 

Britton  v.   Great  Western  Cotton 

Co.  547 

Broadbent  ».  Imperial  Gas  Co.         291 
Broadway  Bank  v.  MeElrath  166 

Brock  v.  Conn.  &  Pass.  Railw.         510 
Brockett  v.  Railw.  411 


TABLE    OF    CASES. 


lxiii 


Brockwell's  case 

Brooklyn  Central  &  J.  Railw.  v. 
Brooklyn  City  Railw.  317, 

Brooks  v.  Buffalo  &  Niagara  Railw. 
v.  New  York  &  Erie  Railw. 
487, 
Broom  v.  Comm. 
Brotherhood,  in  re 
Broughton  v.  Manchester  Water- 
works 
Brown  v.  Beatty  281, 

v.  Bellows 
v.  Byrne 

v.  Cayuga  &  Susquehannah 
Railw.  312,  345, 

v.  Chadbourne 
v.  City  of  Cincinnati 
v.  Duplessis 
v.  Fellows 
v.  Illius 

v.  Maxwell  544, 

v.  Overbury 
v.  Peterson 

v.  Providence,  Warren,  & 

Bristol  Railw.         290, 

Browne  v.  Providence,   Hartford, 

&  Fishkill  Railw.  Co. 
Brownlee   v.    Ohio,    Ind.,    &    111. 
Railw.  173,  187, 

Brownlow  v.  Metropolitan  Board 
Bryan  v.  Lewis 
Bryon  v.  Met.  Sal.  Om.  Co. 
Bryson  v.  Warwick  &  Birmingham 

Canal  Co. 
Buck  v.  Squires 
Buckeridge  v.  Ingraham 
Buckfield  Branch  Railw.  v.  Irish 
Bucknam  v.  Bucknam 
Budge,  ex  parte 
Buffalo  v.  Holloway 
Buffalo    &    Alleghany    Railw.   v. 

Cary 
Buffalo,    Corning,    &   New    York 

Railw.  v.  Pottle 
Buffalo  &  New  York  City  Railw. 
v.  Dudley  177,  211, 

Buffum  v.  N.  Y.  &  Boston  Railw. 
Building    Association    v.    Sende- 

meyer 
Bull  v.  Chapman 
Buncombe  T.  Co.  v.  McCarson 
Bunger  v.  Koop 
Burbridge   v.  New  Albany  &   S. 

Railw. 
Burgess  v.  Gray  528, 

v.  Great  Western  Railw. 
Burke  v.  Leclimere 
Burkinshaw   v.    Birm.    &   Ox.    J. 
Railw.  375, 


224 

563 
572 

520 

85 

648 

604 
350 
240 
140 

641 
335 

278 
324 
240 
312 
555 
455 
271 

303 

522 

215 

635 
128 
591 


315 
120 
177 
315 
377 
561 

74 

213 

220 
290 

158 
18 
73 

433 

363 
530 
633 
215 

387 


Burlington  &  Mo.  River  Railw.  v. 


White 
Burmester  v.  Norris 
Burnes  v.  Pennell 
Burnet  v.  M.  Bisco 
Burnett  v.  Lynch 
Burns  v.  Dodge 

v.  Milw.  &  Miss. 


214 

80 

153,  583 

185 

133,  148,  149 

300 

Railw.  Co. 

272,  351 
Burnside  v.  Steamboat  Co.  478 

Burr  v.  Wilcox  196 

Burrell  v.  Jones  595 

Burroughs  v.  Housatonic  Railw.       476 
Burrows    v.  The   March  Gas  and 

Coke  Co.  483 

Burt  v.  Farrar  70 

Burton,  ex  parte  15 

v.  North  Missouri  R.  Co.       498 

v.  Phil.,  Wil.  &  Bait.  Railw. 

311,  494,  538 

v.  Railw.  Co.  573 

Bush's  case  169 

Bush  v.  Beavan  657,  695 

v.  Steinman  529 

Butler  v.  Hunter  531 

v.  Mehrling  293 

Butman  v.  Vermont  Central  R.         306 

Button  v.  American  Tract  Society      67 

Butts  v.  Woods  599 

497,  515 


Buxton  v.  N.  E.  Railw. 


c. 


c.  c. 


488, 
548, 


&  C.  Railw.  v.  Elliott 

v.  Keary 

v.  Terry 
C.  H.  &  D.  Railw.  v.  Waterson 
C.  H.  &  N.  W.  Railw.  v.  Goss 
Cabot  and  West  Springfield  Bridge 

Co.  v.  Chapin 
Cadmus  v.  Central  R. 
Cahill  v.  Kalamazoo  Ins.  Co. 
Calder  Navigation  Co.  v.  Pilling 

Caledonian  Railw.  v.  Lockhart 
v.  Ogilvy 
v.  Sprot 
Caledonian      &      Dumbartonshire 
Junction     Railway    v.    Helens- 
burgh Harbor  Trustees 
Callender  v.  Marsh 

v.     Painesville     &     H. 
Railw. 
Cambridge  &Somervillet>.  Charles- 
town  Br.  Railw. 
Cam.  &  Amboy  Railw.  v.  Briggs 

Camden  v.  Mulford 


508 
555 
116 
488 
524 

189 

294 
91 
95, 
99 
400 
356 
312 


49 
317 

69 

678 

253, 

467 

696 


I\!V 


TABLE   OF   CASES. 


( lamden  Bank  v.  I  [alls 

( lameron  v.  <  baring  <  Irosa  Railw. 

( lampbell  < .  M( 

<  anal  •  ".  v.  Ai cher 

I  '.I  tke •'• 

( ' :i 1 1  il  ( lommissioners  v.  People 
( lanai  S ,  Railw.  v.  Payne 

( lape  Sable  <  Company1! 
(  apper  v.  Earl  of  Lindsey 
Card  r,  X.  V.  &  II.  Railw. 

<  larden  <•.  <  len  <  !emetery  <  !o. 

( lardiff  C.   &  C.  ( lompany,  in   re 

ton 
( !arington  <\  W\  comb  Railw. 


r.  B 

Railw. 

1       nan   '•. 
Railw. 


Canal  eV  R.  It. 

545, 

<  lahawba   iV    Marion 


Steubenville    &    Ind. 
303,  304, 

<  ii mi'  hael,  ex p 

( larnocban  o.  Norw  ich  &  Spaulding 
Railw.  364, 

<  larpi  nter  v.  Bristol  <>77, 

v.  Countj    '  lommission- 
ers i'l   Bristol 
r.  [ns,  « '". 
Carr  o.  Georgia  Railw.  &  Banking 

i  o.  i,  -jii, 

v.  Royal  Exchange  Ins.  <  !o. 
I         n  v.  Western  Railw. 

'  real  Eastern  Railw. 
v.  Thompson 
pole  >-.  Ambergati  Railw. 
iin  Railw.  '•.  London  &  Br. 
Railw. 
< '  izyer  '■.  Taj  lor 

<  ecil  v.  I'.  Railw. 

<  lentral  Bridge  I  lorporation  v.  ( lity 

"i  Lowell 
Central   Military  Track   Railw.  v. 
R     k  if<  How  '  /an;, 

<  lentral  <  >hio  Railw.  r.  Lawrence 

P         Road  <  !o.  v.  Clem- 
• 
'  R  lil.  <  ".  /•.  Bunn 

o.  Midi. -1.1 
R   ilw.  r.  Kis  li 
'  I   Turnpike   Co.    v.  Valen- 

tine 

<  'nt r.-  Turnpike  Co.  v.  Smith 

<  I.  ids  Mi  '    ri ■!•!• 

Cham  e  i  iin  p.  Painesville&  Hud- 

■ 
(  ,i:i""  !        End  of  Lon- 

don &  i  rystal  Palai  e  Railw. 


135 
360 
60; 
278 
410 
315 
277, 
310 
L20 
43 
489 
688 

154 
372, 
395 

555 

L85 

530 
15 

374 
678 

287 
143 

349 
136 
311 

:;?i 
297 
156 

KM 
546 
186 

■>12 

520 

197 

212 
210 
238 
225 

118 

465 

68 

186 

857 


Chamberlain  v.  West  End  of  Lon- 
don &  C.  Railw.  354 
Chambers  v.  London,  Chatham,  & 

Dover  Railw.  370 

v.  Manchester   &    Mil- 

ford  Railw.  646 

( lhampion  v.  Memphis  &  Charles- 
ton Railw.  212,  411 
Champ  lain  &  St.  Lawrence  Ilailw. 
r.  Valentine  336 

<  lhamplin  r.  Pendleton  315 
Chandler  v.  Broughton  538 
Chapin   v.    Boston    &    Providence 

Railw.  289 

v.  Sullivan  Railw.        265,  614 
v.  Verm.  &  Mass.  Railw.    135 
Chapman  v.  Albany  &  Sch.  Railw. 

311,  815,  318 
v.  Atlantic   &  St.   Law- 

rence  Railw. 
v.   Mad    River   & 
Erie  Railw. 

<  lhapple's  case 
Charitable  Corporation  v.  Sutton     606 
Charles   River  Bridge  v.  Warren     » 

Bridge  76,  253,  274 

Charles  River  Railway  v.  County 
Commissioners  of  Norfolk 

( lharlestown  Branch  Railw.  v.  Mid- 
dlesex 

Charlotte  &  S.  C.  Railw.  v.  Blake- 
ly  176,  200 

Cha.se  v.  New  York  Central  Railw. 

306,  468 

Chasemore  v.  Richards  846 

<  lhatham  v.  Brainerd  315 

<  licali'  v.  Kenward  143 
Cheltenham     &     Great    Western 

Union  Railw.  v.  Daniel      8,  13.'i,  lilt 
v.  Medina  194 

<  Iheney  v.  Boston  &  Maine  Rail- 

|  way'  107 

Chesapeake  &  Ohio  Canal  Co.  v. 

Baltimore  and  Ohio  Railw. 
Chester  Glass  Co.  v.  Dewey 


479 
Lake 

190 
169,  205 


366 
298 


Chestnut    Hill    Turnpike    Co.    v. 

Rutter 
C.  &  A.  Rail 


273 
125, 

175 


v. 


533 
569 
548 

98,  112 
489,  518 


<  rretzner 
v.  Keefe 
v.  Roberts 
v.  Utley 
Chicago,    Burlington,    &    Quincy 
Railw.  V.   <  'audinan  500 

v.  ( ioleman  601 

».  Darks  98,  112,  114 

v.  Wilson  261,  078 

Chicago  &  Miss.  Railw.  v.  Patch- 
in  269,  494,  506,  508 


TABLE    OF   CASES. 


lxv 


Chicago  &  Mont.  Railw.  v.  Bull       293 
Chicago  &  N.  W.  Railw.  v.  Pea- 
cock 98,  112 
v.  Simonson  477 
Chicago    &    Rock    Island    Railw. 

v.  Still  572 

v.  Ward  505 

Child  v.  Coffin  125 

v.  Hudson  Bay  Co.  95,  96 

Childs  v.  Somerset  &    Kennebec 

Railw.  431,  459 

Chilton    v.    London    &    Croydon 

Railw.  97,  106 

Chinnock,  ex  parte  L69 

Chouteau  Spring  Co.  v.  Harris  124 

Church  v.   imperial  Gas  Light  & 

Coke  Co.  624,  628 

v.  Northern  Cent.  Railw.   287 
Cincinnati  Coll.  v.  State  253 

Cincinnati   &   Spring  Grove  Ave. 

Railw.  v.  Cumminsville  323 

Cincinnati,    Indiana,    &    Chicago 

Railw.  v.  Clarkson  220 

Cincinnati,    \V.    &    Z.    Railw.    v. 

Clinton  Co.  Commissioners  246 

City  of  Cincinnati  v.  Stone  528 

City  of  London  v.  Vanacre  85 

City  of  Janesville     v.     Milvv.      & 

Miss.  Railw.  324 

Claflin  v.  Wilcox  537 

Clarence  Railw.   v.    Great   North 

of  England  Railw.  234,  252 

Clark  v.  Boston,  Cone,  &  Mont. 

Railw.  348 

v.    Guardians   of  Cuckfield 

Union  625,  626, 

627,  628,  629 
Clark's  case  96 

Clarke  v.  Leicestershire  &  North- 
amptonshire Canal  Co.  683 
v.  Mayor  of  Syracuse  246 

v.  Monongahela  Navigation 

Co.  200 

v.  Syracuse  &  Utica  Railw.  488, 
490,  507,  520 
v.  Vermont  &  Canada  Rail  w. 

278,  510 
Clarke,  ex  parte  15 

v.  Dickson  151,  153 

v.  Imperial  Gas  Light  Co.  599, 
604 
v.  L.  &  N.  Union  Canal  677 
v.  M.,  Sh.  &  L.  Railw.  284 
v.  Rochester,  L.  &  N.  F. 

Railw.  509 

Clarkson  v.  Hudson  River  Railw.     295 
Clary  v.  Hoagland  697,  698 

Clay  v.  Rulford  584 

Clayton  v.  Carey  691 


Cleaver  v.  Commonwealth  701 

Clement  v.  Caniield  509,  618 

Cleveland    Iron   Co.   v.   Stephen- 
son 592 
Cleve.  &  Pittsb.  Railw.  v.  Ball       290, 

293 
v.  Kelley  459 

v.  Spear    310,  464 
Cleveland,   Painesville,   &  Ashta- 
bula Railw.  v.  City  of  Erie     73,  653 
C.  P.  &  Indiana  Railw.  v.  Simp- 
son 289 
Cleveland    &   C.    Railw.    v.   Bar- 
tram  no 
Cleveland    &    Toledo     Railw.    v. 

Prentice  288 

Cliff,  v.  Midland  Railw.  568 

Clipper  v.  Logan  581 

('live  v.  Clive  162 

Clowes  v.   Staff  Potteries  Water 

Works  Co.  347 

( 'oates  v.  Mayor  of  New  York        246 
Cobb  v.  Mid  Wales  Railw.  372 

Cockburn,  ex  parte  124 

v.  Union  Bank  679 

Cockerell  v.  Van  Dieman's  Land 

Co.  227 

Coe  v.  Wise  635 

Coffin  v.  Collins  76,  92 

Coggs  v.  Bernard  606 

Coil  v.  Pittsburgh  Female  College     75 
( 'nlcock  u.  Louisville  Railw.  433 

Colcough   v.  Nashville  &  N.   W. 

Bailw.  288,  312,  350 

Cole  v.  Crystal  Palace  Railw.  370 

v.  Dyer  704 

Coleman,  ex  parte  157 

Colman  v.  Eastern  Counties  Railw.  33, 

208,  209,  251,  587,  641 

Coles  v.  Bristowe  129,  138 

College  of  Physicians  v.  Salmon         66 

Collins  v.  Blantuin  602 

v.       South      Staffordshire 

Railw.  398 

Collinson  v.  Newcastle  &  Darling- 
ton Railw.  362 
Colonial  Life  Ass.  Co.  v.  Dome  & 

Col.  Life  Ass.  Co.  68 

Colt  v.  Roberts  693 

Columbia  Ins.  Co.  v.  Lawrence        479 
v.  Wheelright     695 
Columbine  v.  Chichester  145 

Col.  &  Ind.  Central  Railw.  v.  Ar- 
nold 544,  593 
Columbus,  Piqua,  &  Ind.  Railw. 
v.  Indianapolis  &  Bellefontaine 
Railw.  621,  653 
Columbus,  P.  &  I.  Railw.  v.  Simp- 
son 278 


1  x.  v  i 


TABLE    OF    CASES. 


I  m    j    Shelby    Railw.    v. 

5 1  ( i 

Colvin  v.  Turnpike  Co.  209 

i  •.  Mori  is  <■> 

<  onwealth  v.  B.  &  W.  Railw.  .'m 

p,  Alger  339 

rison  691,708 

ston  &  Maine  Railw.    293, 

341,  379 

v.  Canal  <  lommissionera  91 

I!-  il  Passenger  Railw.  328 

d.  Clarkson  137,438 

I    - 1 1 . 1 1 wealth  Bank         701 

r.  ( lommissionera  659 

v.  ( lommissionera    of   Alle- 

•j  ll;ili  %-  695 

p.  Cullen  209 

v.  Del.  &  Hud.  Canal  Co.  702 
p.  Erie  &  Northeastern  R.  253, 
320,  412 
r.  Fanners1  Bank 
v.  Pisher 
r.  Fitchburg  Railw 


704 
299,  317 
406, 
410,  411 
rman  Society  692 

t.  Guardians  of  the  Poor  of 

Phil. 
r.  Hartford  &  New  Haven 

Railw. 
v.  1 1  iverbill 
r.  Mayor  of  Lancaster 
i.  Mniis 

v.  Penn.  Benevolent  Inst. 
v.  Perkins 

r.  Philanthropic  Soc, 
>     Pittsburgh 
v.  Power 
v.  Ritcher 
v.  Roxbury 

r.  St.  Pat   Benevolent  Soc. 
r.  Simpson 
ith 

wksbury 

steea   of   St.    Mary's 
<  !hur<  h 
t-.  I'm  on  I  ire  &  Marine  Ins. 

691,  703 


660 

420 
421 
183 
75 
6(J2 
670 
692 
657,  658,  677 
101,  102,  106 
248 
339 
692 
696 
703 
246 

87 


»•.  \  ■  ter  Kailw. 

1  [uehannah  Kailw. 


I  B  ulw.  v.  '  lough 


278, 
291 


73 
256, 
299 
543 
290, 
,  348 
52  t 


I  v.  Gelena,  &c.  II.  Railw. 

I  R  lilw.  o.  <  llapp  283 

Riven    Railw.   p. 

■  y  172,  177,  210,  210 

I  Baxter       186 

v.  Holton       264 


Connop  v.  Levy  15 

<  !onro  v.  Port  Henry  Iron  Co.  87 

Conservators   of    the   Thames    v. 

Railw.  Co.  345 

( lonservators  of  the  Tone  v.  Ash       62 
Cotitoocook  Valley  Railw.  v.  Bar- 
ker 189 
Conybeare  v.  New  B.  &  Canada 

Railw.  &  Land  Co.  152,  591 

Cook  v.  Burlington  344 

v.  Champ.  Trans.  Co.  477 

v.  Parham  550 

Cooke  v.  Oxley  185,  216,  217 

Cooling,  i»  re  357 

v.  Great  Northern  Railw.   357 

Coomb  v.  New  Bedford  Cordage 

Co.  546 

Coon  v.  Syracuse  &  Utica  Railw.    544, 

547,  555,  556 

Coope  v.  Eyre  61 

Cooper  v.  M.  &  Prairie   du  Ch. 

Railw.  547 

Cope  v.  Thames  Haven  Dock  & 

Railw.  625 

Copeland  v.  Copeland  120 

v.  Northeastern  Railw.  132 
Copper  Mines  Co.  v.  Fox  628,  629 
Goppin  v.  Braithwaite  111 

Corby  v.  Hill  236 

Corey  v.  Buffalo,  Corning,  &  N. 

Y.  Railw.  321 

Cork  &  B.  Railw.  v.  Cazenove         204 
v.  Goode  205 

Cork   &    Youghal   Railw.,    in   re  591 
v.  Patterson  206 

Cornwall  G.   C.  M.   Co.  v.  Ben- 
nett 180 
Cornwall  v.  Sullivan  Railw.               519 
Corpe  v.  Glyn                                     686 
Corregal  v.  Lon.  &  Bl.  Railw.         679, 

686 
Cort  v.  Ambergate,  Not.,  B.  &  E. 

J.  Railw.  433 

Corwin    v.    New    York    &    Erie 

Railw.  492 

Coster  v.  New  Jersey  Railw.    269,  296 
Costigan    v.    Mohawk   &  Hudson 

Kailw.  613 

( lotheal  v.  Brower  228 

( !other  v.  Midland  Railw.  408 

Cott  v.  Lewiston  Railw.  347 

Couch  v.  Steele  551 

Cowell  v.  Buckelew  695 

Coy  v.  Utica  &  Sch.  Railw.  495 

Cozens  v.  Bognor  Railw.  257,  383 

Cracknell  v.  Thetford  312 

Craig   v.    Rochester    City  &   Br. 

Railw.  322 

Cram  v.  Bangor  House  91 


TABLE    OF    CASES. 


lxvii 


Crawford  v.  Chester  &  Holyhead 

Railw.  408 

v.  Lelawne  323 

Crawfordsville  Railw.  v.  Wright       538 

Creed  v.  Lancaster  Bank  119 

Crittenden  v.  Wilson  349 

Crocker  v.  Crane  72.  203,  295 

v.    New    London,    Willi- 

mantic  &  Palmer  Railw.  112, 

537 

Croffe  v.  Smith  697 

Croft  v.  Allison  533 

».  London  &  N.  W.  Railw.     359 

Cromford  Canal  Co.  v.  Cutts  358 

Cromt'ord    &    High    Peak   Railw. 

v.  Lacey   ""  195,  200 

v.     Stockport,    D.     &    W. 

Bridge  Railw.  27 

Crosby  v.  Hanover  263,  272,  276 

Croskey  v.  Bank  of  Wales  17 

Cross  v.  Mill  Co.  178 

Crouch  v.  Great  N.  Railw.  466 

v.  London  &  N.  W.  Railw.  466 
Cruger  v.  Hudson  River  Railw.  295 
Cullen  v.  Thompson  591 

Cumberland  Coal  Co.  v.  Sherman    540 
Cumberland  Valley  Railw.  v.  Baab   35, 

185 

v.  Hughs  635 

Cumming  v.  Prescott  86,  93,  162 

CunlhT  v.    Manchester   &   Bolton 

Canal  Co.  80,  207 


Cunningham  v.  E.  &  K.  Railw 

v.  Rome  Railw. 
Curran  v.  State  of  Arkansas 
Currier  v.  Boston  &  M.  Railw. 
v.  Lowell 

r.  Marietta  &  Cin.  Railw 
Curtis  v.  Eastern  Railw. 
v.  Leavitt 
v.  Vermont  Central  Railw. 


187 

360 

181 

292 

561 

250 

347 

602 

287, 

505 

Cushman  v.  Smith  258,  280,  297 

Cutbill  v.  Kingdom  83 

Cutler  v.  Middlesex  Factory  Co.      175 


D. 


Dadson  v.  East  Kent  Railw.  369 

Dalton  v.  Midland  Railw.  156 

Daly  v.  Thompson  9 

Dana  v.  Bank  of  United  States  87 

Danbury  &  N.  Railw.  v.  Wilson      176, 
177,  204,  209,  211,  215 
v.  Town  of  Norwalk  421 

Dance  v.  Girdler  13,  24 

Dand  v.  Kingscote  2 

Danforth  v.  Smith  392 


Danner  v.  South  Carolina  Railw.  492 
Danville,  &c.  Co.  v.  State  701,  705 
D'Arcy  v.  Tamar,  K.  &  C.  Railw.  92 
Darling  v.  Nt-ill  697 

Darnley  v.   London,   Chatham,   & 

Dover  Railw.  284,  510 

Dart  v.  Houston  680 

Dartmouth  College  v.  Woodward     58, 
63,  76,  274 
Dartmouth  &  Torbay  Railw.,  in  re    51 
Dascomb  v.  Buffalo  &  State  Line 

Railw.  567,  569 

Dater  v.  Troy  T.  &  Railw.  533 

Dauchy  v.  Brown  124 

Davidson    v.    Boston     &    Maine 

Railw.    248,  287,  298,  299,  341,  398 

Davidson  v.  Tulloch  152,  595 

Davis    v.  Bank  of  England  157 

v.  Detroit  &  Mich.  Railw.     545 

v.  Bur.  &  Mo.  R.  Railw.       512 

v.    Charles    River   Branch 

Railw.  286,  287 

v.  Combermere  42 

v.  E.  T.  &  Ga.  Railw.  256 

v.  La  Crosse  &  Milwaukee 

Railw.  351 

v.  Lamoille  County  Plank- 
Road  634 
v.  Leominster  562 
v.  London  &  Bl.  Railw.         351 
v.  Meeting  House  in  Lowell   95 
v.  Ru-sell  300 
Davison  v.  Seymour                          605 
Dawson  v.  Midland  Railw.       487,  519 
Day  v.  Day  163 
v.  Newark  India  Rubber  Co.      63 
v.  Owen                                 95,  100 
Dayton  v.  Borst                 176,  182,  183 
Dayton,  &c.  Railw.  v.  Lewton          301 
Dean  and  Canons  of  the  English 

Cathedrals  66 

Dean  v.  Sullivan  Railw.  265,  268,  351, 

507 
Dearborn  v.  Boston,  C.  &  Mon- 
treal Railw.  58,  278,  303 
Dedzell  &  Ind.  &  Cin.  Railw.  560 
Del.  &  Atlantic  Railw.  v.  Irie         209, 

215 
Delaware  Canal  Co.  v.  Sansom        177 
Denny  v.  North  W.  Christian  Uni- 
versity 175 
V.  Trapnell                              699 
Denton  v.  Livingston  121 
v.  Macmel  12 
Deposit   &   G.   Life   Ass.  Co.  v. 

Ayscough  204 

Derby  v.  Phil.  &  Read.  Railw.  532,  533 
Degg  v.  Midland  Railw.  544,  555 

De  Grave  v.  Mayor  of  Monmouth    629 


lwiii 


TABLE   OF   CASES. 


1>,.  |  169 

1>.    V    ■  i    ne  r.  Fox  269 

Devlin  v.  S<  cond  Avenue  Railw.      4  Hi 
p.    Penrose   Ferry   Bridge 

887 
Pike  595 

1»,-   Winl    r.   Willi.-  505 

Dickinson  r.  Valpy  1 1 

D    trichp.  Penn.  Railw.  109 

,    p.    London    &    Blackwall 
iw.  130,  625,  628,  629 

l>ill  n_li.nn  p.  Snow  62 

Dimi  .»  p.  » Irand  June.  <  anal  Co.     441 
Dimick  v.  Brooks  294 

Direct   Shrewsbury  and  Leicester 

l!;iiiu  .,  in  re  178 

1 1  .  & ■•■   r.  Elailw.  287 

I'  or  p.  Railw.  288 

Dixon  p.  Rankan  649 

Doane  p.  Scannell  703 

1 1        in,  ex  i>mte  135 

Dodd  p.  Salisbury  &  Y.  Railw.  262,  409 

i  I  p.  Burns  271 

mnty  Commissioners     303, 

304,  305 

1»  e  d.   Armistead  v.  The  North 

StaflTordshire  Railw.      873,  387,  408 
1>  •■  <[.  Hudson  p.  Leeds  &  Brad- 
ford Railw.  382 
I1        I.  Hut   binson  v.  Manchester, 

Bury,  &  Rosendale  Railw.  381 

I>"    d    Payi  e  p.  Bristol  &  Exeter 

Railw.  '  408 

D  B  247 

P.Georgia  Railw.  &  Banking 
Co.  301 

Domestic    &    Foreign    Missionary 

S     iety'a  Appeal  07 

Donaldson  p.  Fuller  014 

Donaldson  p.  (iillot  158 

I  I         iher  o.  St;ite  of  Mississippi       58, 

246 
D  Ch.  &  X.  \V.  Railw.   509 

D  Lo  don  &  Croydon  Railw.    27, 

375 
D         ic.  E.  Br.  &  \\\  Raihv.         279, 

290 

Doubl  day  p.  Muskett  n 

D     gbty  p.  Somerville  &  Easton 

1:'ilw-  255,285 

Jton  p.  Payne  267,  316,  519 

Harboi  p.  L.  C.  &  Dover 

Railw. 

•'  Bank  of  Zanesville 

Downie  p.  White 

Downing    p.    Mount    Washington 
Roa 

I I  ■■■  nton,  ex  p  u  /■ 
Down.  r.  N.  Y.  &  X.  II.  Railw. 


284 
125 
172 


540 
680 
109 


Drake  v.  Hudson  River  Railw.        298, 

315,  318 

v.  Phil.  &  Erie  Railw.  521 

Draper  v.  Gordon  146 

v.  Noteware  657,  695 

v.  Williams  235 

Drew  v.  New  River  Co.  560 

v.  Sixth  Avenue  Railw.  541 

Druid,  Case  of  the  536 

Drummond,  ex  parte  170 

Drybutter  v.  Bartholomew  120 

Dublin  &  W.  Railw.  v.  Black  204 

Du  Bois  v.   Delaware  &  Hudson 

Canal  Co.  435,  437 

Dudden  v.  Union  312 

Duke  v.  Cahawba  Nav.  Co.  73 

Duke  of  Norfolk  v.  Tennant  389 

Du  Laurans  v.  Pacifip  Railw.  114 

Duncan  v.  Chamberlayne  162 

v.  Hodges  135 

v.  Luntley  123 

v.  Railroad  Co.  549 

Duncuft  v.  Albrecht         120,  142,  143, 

144 
Dundalk  W.  R.  v.  Tapster  679 

Dunham  v.  Troy  Union  Railw.  584 
v.  Trustees  of  Rochester  249 
Dunn  v.  City  of  Charlestown  235,  349 
v.  North  Missouri  Railw.  463 
Dunston  v.  Imperial  Gas  Co.  430,  598 
Durfee    v.    Old    Colony    &    Fall 

River  Railw.  645 

Durgin  v.  Munson  557 

Durham     &     Sunderland     R.     v. 

Walker  2,  3 

Durkee  v.  Vermont  Central  Railw.  142 
Dutchess    Cotton    Manufacturing 

Co.  v.  Davis  176 

Duvergier  v.  Fellows  122 

Duxbury     v.     Vermont      Central 

Railw.  562 

Dyer  v.  Jones  432 

v.  Walker  &  Howard  75 

Dynen  v.  Leach  545 


E. 

E.  &  W.  I.  Docks  &  B.  J.  Railw. 

v.  Gattke       312,  349,  353,  388,  686 
E.  &  A.  Railw.  v.  Poor  610 

Ea»le  v.  Charing  Cross  Railw.  354 

Eakin  v.  Raub  297 

Eakright  v.  L.  &  N.  I.  Railw.    73,  187 
Eales  v.  Cumberland  Black  Lead 

Mine  Co.  16 

Earnest'.  Boston  &  Worcester  R.     517 
v.  Salem  &  Lowell  Railw. 

489,  518 


TABLE   OP   CASES. 


lxix 


Earl  of  Jersey  v.  B.  F.  Floating 

Dock  Co.    '  301 

Earl  of  Lindsay  v.  Great  Northern 

Railw.  45 

Earl   of  St.   Germans   v.    Crystal 

Palace  Railw.  376 

Earl  of  Shrewsbury  v.  North  Staf- 
fordshire Railw.  611 
Earle  v.  Hall                                         529 
East   Anglian    Railw.    v.   Eastern 

Counties  Railw.   30,  34,  45,  209,  645 
East  Lancashire  Railw.  v.  Hatters- 
ley  453 
East  Lancashire   Railw.  v.   L.   & 

Yorkshire  Railw.  620 

East  London  Water  Works  Co.  v. 

Bailey  23 

East    Pascagoula  .  Hotel    Co.    v. 

West  73,  119 

East  Penn.  Railw.  v.  Heister  290 

v.  Hottenstine    290 
East  Tennessee   &  Ga.  Railw.  v. 

St.  John  573 

East  &  West  India  D.  &  B.  Railw. 

v.  Gattle  686 

East  Wh.  M.  M.  Co.,  in  re    157,  681, 

690 
Easter  v.  Little  Miami  Railw.  523 

Eastern  Counties  Railw.,  ex  parte  383 
v.  Broom  111 
Eastham  v.  Blackburn  Railw.  295 

Eastwood  v.  Bain  591 

Eaton  v.  Aspinwall  199 

v.  E.  &  N.  A.  R.    304,  419,  531 
Eckert  v.  L.  I.  Railw.  567 

Edgerly  v.  Emerson  91 

Edgerton  v.  N.  Y.  &  N.  H.  Railw.  578 
Edinboro'  &  Dundee  R.  v.  Leven  375 
Edinburgh  &  G.  Railw.  v.  Stirling 

&  D.  Railw.  641 

Edinburgh,  L.  &  N.  H.  Railw.  v. 

Hibblewhite  178,  226 

Edinburgh,     Perth,     &     Dundee 

Railw.  v.  Philip  40,  50 

Edmundson,-  in  re  698 

Edwards  v.  Grand  J.  Canal  Co.         36 

v.  Grand  Junction  Railw.    19, 

22,  47,  49 

v.  Great  Western  Railw.   466 

v.  London  &N.W.  Railw.  Ill 

v.  Lowndes  687 

v.  Union  Bank  of  Florida  534 

Egbert  v.  Brooks  146 

Elder  v.  Bemis  529 

Elderton  v.  Emmins  614 

Electric  Tel.  Co.,  in  re  169 

v.  Bunn  169 

Ellicottville  Plank-Road  v.  Buffalo, 

&c.  Railw.  316 


Elliot  v.  Northeastern  Railw.  358 

Eliott,  in  re  398 

Elliott  v.  Fairhaven    &  Westville 

Railw.  325 

v.  South  Devon  Railw.         372 

Ellis  v.  Coleman  647 

v.  Essex  Bridge  Co.  125 

v.    London   &    Southwestern 

Railw.  487 

v.  Marshall  76,  208 

v.   Sheffield  Gas  Consumers' 

Co.  528,  530 

v.  Swanzey  315 

Ellison  v.  Mobile  &  Ohio  Railw.       187 
Elsworth  v.  Cole  128 

Elwood  v.  Bullock  95 

Elysville  v.  O'Kisco  176 

Embury  v.  Conner  235,  246 

Emmerson's  case  155 

Enfield  Toll  Bridge  v.  Hartford  & 

N.  H.  Railw.  253,  273,  274,  275 
Enright  v.  San  Fr.  &  San  J.  Railw.  518 
Enthoven  v.  Hoyle  134 

Eppes  v.  M.  G.  &  T.  Railw.  221 

Erie    &    Northeastern    Railw.    v. 

Casey  270 

Ernest  v.  Nichols  585 

Ernst  v.  Croysdell  647 

v.  Hudson  River  Railw.  570, 

577 
Essex  Bridge  Co.  v.  Tuttle  177 

Etty  v.  Bridges  162 

Eustis  v.  Parker  58 

Evans  v.  Haefner  265,  300 

v.  Smallcombe  590 

v.  The  Heart  of  Oak  Bene- 
fit So.  671 
Evansville  &  C.  Railw.  v.  Cochran  279, 

504 
Evansville  &  Crawf.  Railw.  v.  Dick 

250,  269 
Evansville  &  C.  Railw.  v.  Duke  322 
Evansville  &    C.   Railw.    v.   Fitz- 

patrick  279,  504 

Evansville  Railw.  v.  Stringer  504 

Everhart  v.  West  Chester  &  Phila- 
delphia Railw.  197,  201,  211 
Eversfield  v.  Midsussex  Railway  262, 

409 
Eward  v.  Lawrenceburg  &  Upper 

Miss.  539 

Eyton  v.  D.  B.  &  C.  Railw.  374 


F. 

F.  Street,  matter  of 
Falconer  v.  Campbell 
Faley  v.  Hill 


278 

76 

442 


Ixx 


TABLE    OF    CASES. 


Fall    River    [ron   Works   r.   Old 
Coloin  &  F.  R.  Railw.       886,  413, 

706 
Falls  r.  Belfast  &  B.  Railw.  371 

Farlon .  361 

1  Bank    of    Maryland    V. 

[glehart  125 

Farnum  p.  Bla«kstone  (anal  Co.       63 

Farrow  p.  Vansittarl  2 

;,        Boston    &  Worcester 

[w.  644,  549,  554,  555,  556 

1        o»er  p.  Erie  Railw.  545 

p.  Hebard  210 

Faonce  p.  Burke  428 

Faviell  p.  Eastern  Counties  Railw.  365 

Fawcett  p.  House  606 

p.    fork    &     North    M. 

Railw.  491 

Fearne  vV  Deane's  case  86 

1       nley  v    Morley  465 

le  &  1  >ean's  case  150 

Featherstonbaugh    v.    Porcelain 

<  lompany  593 

Felder  p.  Railw.  Co.  537 

F<  It  ham  p.  England  547 

I  .  Memphis  691 

Fenton  p.  Treni  &  Mersey  Nav. 

Co.  358,687 

Fenwick  v.  Bell  581 

I       fees  of  Heriot's   Hospital  v. 

Gibson  404 

I  p.    Brighton    &    S.    C. 

Iw  370 

Fernow    p.    Dubuque    &    S.    W. 

Railw  521 

Feul  p.  T.  P.  &  W.  Railw.  483 

p.  \'an  Buskirk  509 

ngs  p.  Tisdal  615 

Ffooka  p.  London  &  S.  W.  Railw.     81 

Field  p.  Field  91 

p.  I. 'Iran  129 

v    Newport,  Ab.  &  Hereford 

Railw.  465 

r.  New  York  Central  Railw.  477 
p.  Vermonl  &  M  iss.  Railw.     286 
Filder  p.   L.    Brighton    &  South 

ilw.  611 

I  '•.  Bristol  &  Exeter  Railw.    625 

I  Gla   jow  &  S.  W.  Railw.  -Ilw 

Pai  isb  in  Sutton  p.  '  07 

.  Miss,  &  Tenn.  Railw.         119 

Fish  p.  I  lodge  529 

Fiahi  :  Hank  166 

p.  Evansville  &  Crawfords- 

ville  Railw.  213 

p.  Price  128 

Fishmongers1  I       p.  Robertson       624 

Fitch  v.  N.  H.  M.  L.  &  Stoning- 

ton  Railw.  623 


Fitchburg    Railw.    v.    Boston    & 
Maine  Railw.  236,  286,  288, 

341.  355 
v.  Charlestown   M.   Fire 

Ins.  Co.  478 

Fitchburg  Railw.  v.  Grand  Junction 

Railw.  &  Depot  Co.  426 

Fitzpatrick  v.  New  Albany  &  Sa- 
lem Railw.  551 
Flagg,  in  re  et  als.  v.  Lowber,  608 
Flamank,  ex  parte  234 
Fleming,  ex  parte  660 
Fletcher  v.    Auburn    &   Syracuse 

Railw.  299,  314 

v.  Boston  &  Maine  Railw.  619 

v.  Great  Western  Railw.   313 

v.  Rylands  481 

Flint  &  P.  M.  Railw.  v.  Dewey       609 

Flowpr  v.  London,  Br.  &  S.  Coast 

Railw.  Co.  252 

Flynn  v.  San  Fr.  &  St.  J.  Railw.  477 
Fooks  v.  Wilts,  Somerset,  &  Wey- 
mouth Railw.  381 
Foote  v.  City  of  Cincinnati  111 
Ford  v.  Ch.  &  N.  W.  Railw.  300,  324 
Forrest  v.   Manchester,   S.   &   L. 

Railw.  585 

Forster    v.     Cumberland     Valley 

Railw.  366 

Fort    Edward,    &c.    Plank -Road 

Co.  v.  Payne  183 

Forward  v.  Hampshire  &  Hampden 

Canal  Co.  273 

Fosberry  v.  Waterford  &  Limerick 

Railw.  425 

Foster  v.  Bank  of  England  229 

v.  Essex  Bank       208,  533,  538 

v.  Fitch  464 

v.  Oxford  W.  &  W.  R.  92 

v.  Walter  67 

Fotherly  v.  Met.  Railw.  678 

Fowler  v.  Kennebec    &  Portland 

Railw.  429 

Fox  v.  Northern  Liberties  534 

v.  State  of  Ohio  247 

v.  Western  Pacific  R.  381 

Franklin  Ben.  Asso.  v.  Common- 
wealth 692 
Franklin  Bridge  Co.  v.  Wood  3 
Franklin  Glass  Co.  v.  Alexander  174 
v.  White  174 
Franklyn  v.  Lamond  135 
Fraser  v.  Whalley  592 
Frazier  v.  Penn.  Railw.  Co.  545,  555 
Frederick  v.  Clarke  696 
Freedle  p.  North  Carolina  Railw.  289 
Freeman  v.  Winchester  176 
Fremont  v.  Crippen  657 
Frost  v.  Union  Pacific  Railw.            547 


TABLE    OP    CASES. 


lxxi 


Fry's    Ex'r    v.  Lex.    &    Big.    S. 

Railw.  118,  178,  210,  211,  411 

Fuller  v.  Dame  606 

v.  Trus.  of  Academic  School 

in  Plainfield  692 

Furniss  v.  Hudson  River  Railw.      305, 

351 
Fyler  v.  Fyler  161 


G. 


Gage  v.  Newmarket  Railw.  Co.        32, 

35,  38 
Gahagan    v.    Boston     &     Lowell 

Railw.  576,  580 

Galena  &  Chicago  Railw.  v.  Grif- 
fin 501,  516 
v.  Jacobs  57-4 
v.  Loomis  573 
v.  Yarwood  580 
Galloway  v.  Mayor  &  Commonalty 

of  London  &  Metropolitan  Railw.  251 
Galvanized  Iron  Co.  v.  Westoby  15 
Gandell  v.  Pontigny  614 

Gano  v.  State  701,  703 

Gardiner  v.  Boston  &  Worcester 

Railw.  319 

v.  Smith  510 

Gardner  v.  Charing-Cross  Railw.     374 

v.  Newburgh     245,  297,  299, 

344 

Garrett  v.  Salisbury  &  Dorset  J. 

Railw.  428,  453 

Garrick  v.  Taylor  131 

Gari-is  v.  Portsmouth  &  Roanoke 

Railw.  488 

Garrison  v.  Memphis  Ins.  Co.  478 

Gaskell  v.  Chambers  598 

Gawthern  v.  Stockport,  Desley,  & 

W.  Railw.  334 

Gayle.  v.  Cahawba  R.  176 

Gebhait  v.  Junction  Railw.  Co.  175 
General  Exchange  Bank,  in  re  126 
Gerhard  v.  Bates  154 

Getty  v.  Hudson  River  R:»iiw.  337 

Gibbons  v.  O^den  340 

Gibbs   v.    Trustees   of    Liverpool 

Docks  634 

Gibson  v.  East  India  Co.  430 

v.  Pacific  Railw.  545 

Giesy  v.  Cincinnati,  Wil.  &  Zanesv. 

Railw.  268,  279 

Gilbert  v.  Cooper  8 

v.  Havermeyer  363 

Giles  v.  Hutt  178 

v.  Taff  Vale  Railw.  537 


Gillet  v.  Moody  183 

Gillett  v.  Western  Railw.  420 

Gillenwater  v.  Mad.  &  Ind.  Railw.   551 
v.  Miss.  &  A.  Railw.      255 
Gillis  v.  Penn.  Railw.  104,  105 

Gilman  v.  Eastern  Railw.  557 

v.  Hall  432 

Gilpin  v.  Howell  121 

Gillshannon  v.  Stony  Brook  Railw.  547, 

556 
Gittings  v.  Mayhew  13 

Glover  v.  London  &  Northwestern 

Railw.  537 

v.  North    Staffordshire 

Railw.  250,  310,  389 

v.  Powell  341 

Goddard  v.  Hodges  15 

v.  Pratt  12 

Goff  v.  Great  Northern  Railw.         541 
Gold  Mining  Co.,  ex  parte  611 

Gold  v.  Vermont  Central  Railw.       294 
Gooday  v.   Colchester   &   Stour 

Valley  Railw.  Co.  18,  32,  46 

Goodman  v.  Pocock  613 

Goodrich  v.  Eastern  Railw.  Co.        343 

v.  Reynolds  »  196 

Goodtitle  v.  Kibbe  247 

Goodwin  v.  Glazer  695 

v.  Union  Screw  Co.  601 

Gorman  v.  Board  of  Police  691 

v.  Pacific  Railw.  490,  493 

Goshen  Turnpike  Co.  v.  Hurtin       176 

Gould  v.  Hudson  River  Railw.        248, 

321,  336,  355 

Governor  &  Company  of  Copper 

Miners  v.  Fox  625,  626,  628 

Governor   &   Company    of  Plate 

Manufacturers  v.  Meredith  317 

Grady,  ex  parte  157 

Graff  v.  City  of  Baltimore  301 

v.  Pittsburg  &  Steubenville 

Railw.  125,  195 

Graham,  ex  parte  75 

v.  Birkenhead,  &c.  Railw.    81 
v.    Columbus    &    Ind. 

Railw.  381 

Grand    Gulf    Railw.    &    Bank   v. 

State  703 

Grand  J.  &  Depot  Co.  v.  County 

Commissioners  334 

Grand  Junction  Railw.  v.  White      505 
Grannahan  v.  Hannibal  &  St.  Jo- 
seph Railw.  464 
Gratz  v.  Redd  176 
Gravenstine's  Appeal  81 
Gray  v.  Coffin                                     162 
v.  Hook                                      606 
v.  Liverpool  &  Bury  Railw.     49, 
234,  250 


lwii 


TABLE   OF   CASES. 


(ir.i\   ;-.  Monongahela  Navigation 

Co.  208 

r.  Portland  Hank  70 

Grayble    v.    York    &   Gettysburg 

Turnpike  '  ".  201 

•  .  Turnpike  ( !o.  177 

r.  Lynchb.  cv  Salem  Turn- 
pike <  o.  73 
Greal   Falls  &  Conway  Railw.  v. 
Copp                                           191 

it  Luxemburg  Railw.  v.  Mag- 
na] 609 

■  North  of  England,  Clarence 
A.  Hartlepool  Junction  Railw.  v. 
(  lii-.  nee  Railw.  393 

Great  North  of  England  Railw.  v. 

Biddulph  9,  159 

Great  Northern  Railw.,  ex  parte     383 
r.   Eastern  Counties 

Railw.  616,  617 

t\  Harrison  457 

v.  Kennedy  178 

v.  S.  Yorks.  Railw.     467 
(lieat  Western  Railw.  v.  Uacon       500 
v.  Birmingham  &  Ox- 
ford June.  Railw.     41, 
621 
v.  Decatur  319 

v.  Geddis  501 

v.  Coodman  111 

v.  Helm  500 

r.  .Metropolitan  Co.         155 
r.  Morthland  501 

r.  Oxford,  Worcester, 
&  Wolverhampton 
Railw.  652 

o.  Reg.  674,  67.5 

v.  Rushout  90,  620 

r.  Thompson  506 

Greathed  v.   S.  W.  &   Dorchester 

Railw.  8 

Gre<  ii  v.  African  Ep.  Meth.  Soc.     692 

v.  Boodyj  265 

v.  .Miller  91 

v.  Morris  &Es'x  Railw.  282,296 

V.  Murray  141 

v.  Seymour  76 

o.  Winter  146 

iway  v.  Adams  145 

Greene  o.  1  tennis  3 

Greenville    and   Columbia  R.    v. 

Cathcart  177 

'.  I  ioleman  209,  212 
v.  Nunnamaker  2s:i 
v.  Partlow  277,  278 
v.  Smith  176 

r.  Woodsidea  201 

away  v.  Mead  696 

:  P.  Wilton  Railw.    286,  348 


Gregg  v.  Gregg 
Gregory  v.  Patchett 
Grippen  v.  N.  Y.  Cent.  Railw 
Grissell  v.  Biistowe 
( Irizewood  v.  Blane 
Groux  &  C.  Co.  v.  Cooper 
(iue.st  v.  Homfray 
Guest  v.  W.  B.  &  L.  Railw. 
Gunn    v.   London    & 
Ass.  Co. 


H. 


519 

649 

569,  577 

133,  137 

128 

68 

241 

169 

Lancashire 

18,  611 


H.  B.  Coal  Co.  v.  Teague 
H.  &  P.  Plank-Road  Co.  v. 


180 
Bryan 
201,221 
Habersham  v.  Savannah,  &c.  Canal 

Co.  675 

Hackett  v.  Boston,  Cone.  &  Mont. 

Railw.  292 

Haddon  v.  Avers  610 

Hagar  v.  Brainerd  363 

Hager  v.  Reed  142 

Hagerstown    Turnpike    Co.    v. 

Creeger  3 

Haight  v.  City  of  Keokuk  323 

Haines  v.  Taylor  352 

Haldeman  v.  Penn.  Railw.  271 

Hale  v.  Union   Mutual  Fire  Ins. 

Co.  533 

Hall  v.  Chaffee  242 

v.  Norfolk  Estuary  Co.     122,  141 
v.  Pickering  539 

v.  Power  101,  102 

v.  Railw.  Cos.  478 

v.  Selma  &  Tenn.  Railw.  201 

v.  U.  S.  Insurance  Co.      125,  195 
v.  Vt.  &  Mass.  Railw.  44,  598,  599 
Halloran    v.    N.    Y.    &    Harlem 

Railw.  486 

Halstead  v.  Mayor,  &c.,  of  N.  Y.  249 
Hamden  v.  Northamp.  Co.  562,  563 
Hambro  v.  Hull   &  London    Fire 

Ins.  Co.  591 

Hamilton    v.    Annapolis    &     Elk 

Ridge  Railw.  271,297 
v.  Newcastle    &    Dan- 
ville Railw.  597 
v.  New  Yrork  &  Harlem 

Railw.  318 

v.  Smith  10 

Hamilton  Plank-Road  v.  Rice    209,  215 

Hammersmith    Railw.    v.    Brand   356, 

475 

Hammon  v.  Southeastern  Railw.       475 

Hanna  v.  Cin.  &  F.  W.  Railw.  210 

Hannibal  &  St.  Joseph  Railw.  v. 

Hattie  Higgins  558 


TABLE    OP   CASES. 


lxxiii 


Hannibal  &  St.  Joseph  Railw.  v. 

Kenney  493 

Hannibal  &  St.  Joseph  Railw.  Co. 

v.  Rowland  294 

Hannuic  v.  Gohlner  127,  138 

Hanover  Railw.  v.  Coyle  569 

Harlboroiiijh  v.  Shardlow  301 

Harbv  v.  E.  &  W.  I.  Docks  &  B. 

J.  Railw.  416 

Hard,    Adin'r,   v.   Vt.   &   Canada 

Railw.  548,  556 

Harding  v.  Goodlett  235 

v.  The  Met.  Railw.  376 

Hare  v.  London  &  N.  W.  Railw.    131, 

642 
v.  Waring  138 

Hargreaves  v.  Lancaster  &  Preston 

J.  Railw.  45 

v.  Parsons  120 

Harlaem  Canal  Co.  v.  Seixas  177 

Harper  v.  Ind.  &  St.  D.  Railw.        544 
Harrington  v.  Du  Chastel  606 

Harris,  ex  parte  131 

v.  Roof  607 

v.  Stevens  104 

Harrisburg  v.  Crangle  298 

Harrison's  case  169 

Harrison,  Adm.    v.  Central   Rail- 
way 545 
Harrison  v.  Berkley  482 
v.  Heatliorn  11 
v.    Lexington     &     Ohio 
Railw.                               236 
Hart  v.  Mayor  of  Albany                   249 
v.  The  Western  Railw.     478,  483 
Hartford  &  N.  H.  Railw.  v.  Boor- 
man             168,  198 
v.  Croswell                 207 
v.  Kennedy                 176 
v.  N.  Y.  &  N.  H. 

Railw.  637 

Hartly  v.  Harm  an  615 

Harty  v.  Central  Railw.  567,  569 

Harvard  Branch  Railw.  v.  Rand       293 
Harvey  v.  Lackawana  &  Bloomsb. 

Railw.  •     281,  360 

v.  Lloyd  288,  379 

v.  Thomas  385 

Haslett's    Executors    v.    Wother- 

spoon  17 

Hastings  v.  Amherst  &  Belcher- 
town  Railw.  704 
Haswell      v.      Vermont      Central 

Railw.  383 

Hatch  v.  Cin.  &  Ind.  Railw.  276 

v.  Vermont  Central  Railw.   250, 

281,  310,  317,  345,  356 

Hattersley    v.    Shelburne    (Earl)    51, 

648 


Havens  v.  Erie  Railw.  569 

Hawkes  v.  Eastern  Counties  Railw.   28, 
35,  37,  39 
Hawkins,  ex  parte  392 

v.  Maltby  143 

Hawley    v.     Baltimore     &    Ohio 

Railw.  544,  555 

Hawthorne     v.     Newcastle-upon- 

^yne  &  N.  Shields  Railw.  442 

Hay  v.  Cohoes  Company  303,  533 

Hayden  v.  Cabot  562 

v.  Noyes  96 

Hayes  v.  Shackford  260 

v.  Western  Railw.  544,  547 

Hayne  v.  Beauchamp  72,  119 

Haynes  v.  Barton  364 

v.    East    Tenn.    &    Ga. 

Railw.  547 

v.  Palmer  198 

.  v.  Thomas  321 

Hays  v.  Meller  581 

Hayward  v.  Mayor  of  New  York     270 

Hazen  v.  Boston  &  Maine  Railw.  260, 

269,  539 
Healey  v.  Story  595 

Heane  v.  Rogers  12 

Heart  v.  State  Bank  121,  126 

Heaston  v.  Cincinnati  &  F.  W.  R.  73, 
74,  159,  160 
Heathcote  v.  North  Staffordshire 

Railw.  46,  675 

Hedges  v.  Metropolitan  Railw.         374 
HefFner  v.  Commonwealth  680 

Helm  v.  Swiggett  681,  690 

Hemingway  v.  Fernandes  2 

Hendee  v.  Pinkerton  604,  631 

Henderson  v.  Australian  Royal  Mail 

Steam  Nav.  Co.     626 
v.  Mayor  of  New  Or- 
leans 297 
v.  Railw.                   173,  652 
Henderson  &  Nashville  Railw.  v. 

Leavell  185 

Hennessey  v.  Farrell  429 

Henry  v.  Dubuque  &  Pacific  Railw. 

269,  281,  290,  300,  505 
v.  Pacific  Railw.  508 

v.   Pittsburg  &  Alleghany 

Bridge  Co.  310,  317 

v.  Rut.  &  Bur.  Railw.  599 

v.  Vermilion  Railw.      171,  183, 

200,  219 

v.  Vermont  Central  Railw.  312 

Hentz  v.  Long  Island  Railw.  318 

Herbein  v.  The  Railroad  292 

Herkimer  M.  &  H.  Co.  v.  Small      176 

Herrick  v.  Vermont  Central  Railw. 

432,  436,  443,  449 
Herrimz  v.  Wil.  &  R.  Railw.  573 


lxxiv 


TABLE    OF    CASES. 


Benej   9.  Merrimac  Mutual  Fire 

Insurance  291 

Hertford  v,  Boore  241 

II   stei    p.  Memphis  &  Charleston 

lw.  213 

Hetheringl  Hayden         266 

11    irett  v.  Swift,  el  ais.  54  I 

Hewitt  v.  1'  128 

>n  o.  I.  mdon  &  S.  W.  Railw.  370 
Heyl  o.  V.  W.  &  B.  Railw.  243 

II:      ird  '•.    New  York  and   Erie 

lw.  ion,  111 

Hibblewhite  o.  M'Morine        l-;7,  128, 

134,  138 
Hibernia  Turnpike  Co.  v.  Hender- 
son 200 
II       jv.  B.  &  L.  Railw.                569 
Hifkok  r.  Plattsburgh  249 
Hick>  v.  Launceston  74 
Higgins  r.  Livingstone                      597 
<■.  \Y.  &c.  Railw.                Ill 
Highland  Turnpike  Co.  v.  McKean   74, 
118,  200,  201 
Hightower  v.  Thornton            176,  183 
Higley  v.  Lancaster  &  Y.  Railw.     373 
Hilcoat  r.  Archbishops  of  Canter- 
bury &  York                                  362 
1 X ill  r.  Greal  X.  Railw.                     373 
v.  Manchester       Waterworks 

603 

v.  Mo  awk  &  II.  Railw.    271,  280 

r.  Port.  &  Rochester  Railw.     578 

v.  South  Staffordshire  Railw.    625 

r.  Western  Vermont  Railw.      266 

Hill.-  r.  Parish  64 

Billiard  v.  Goold        98,  112,  114,  584 

•    Richardson  529 

o.  Giraud  120 

Hitchcock  v.  Danbury  &  Norwalk 

Railw.  412 

>'■  Giddings  154 

Hoagland  o.  Bell  170 

v.  ('in.  ^  F.  AY.  Railw.    175 

Hoari  86,  149,  647 

Hobbitl  o.  London  &  X.  W.  Railw.  528 

Hocbster  <•.  De  Latour  433 

Rut.  .V  Bur.  Railw.         599 

Bodgkinson  o.National  Live  Stock 

Ins.  Co.  610 

'-.  Davies  140 

11    . .-  o.  Zanesville  Canal  Co.  337 

mb  o.  X.  11.  I).  B.  Co.  91 

Bolden    v.    Rut.    &    Bur.   Railw.  510, 

512 

Hole  o.  Barlow  352 

S  ttin^bonne  &  Sheerness 

Railw.  531 

11         ■  v'.   Leonard's  Shore- 

ditch  635 


Hollister  v.  Union  Co.  311 

Bolmes,  ex  parte  86,  695 

v,  Gilliland  74 

v.  Higgins  15 

Homan  v.  Stanley  531 

Homersham     v.     Wolverhampton 

Waterworks  432,  625 

Honner  v.  Illinois  Central  Railw.    544, 

Hooker  v.  N.  H.  &  N.  Y.  Railw.     311 
v.  N.  H.  &  Northampton 

Co.  305,  344 

v.  Utica  &  Minden  Turn- 
pike 268 
Hop  &  Malt  Company,  in  re  151 
Hopkins  v.  Prescott                             606 
Horn  v.  Atlantic  &  St.  Lawrence 

Railw.  488,  509 

Hornaday  v.  Ind.  &  111.  Cent.  R.  R.  214 
Horner's  Estate,  in  re  234 

Hornstein  v.  Atlantic  &  G.  Western 

Railw.  278 

Horton  v.  Westminster  Improve- 
ment Comm.  603 
Hortsman   v.   Lexington    &  Cov. 

Railw.  235 

Hosking  v.  Phillips  383 

Hotchkiss  v.  Auburn  &  Rochester 

Railw.  286 

Houldsworth  v.  Evans       157,  588,  590 

Housatonic  Railw.  v.  Waterburv      489 

Howard  v.  Gage  671,  691 

v.  Wilmington  &  Susque- 

hannah  Railw.  428 

Howden  v.  Simpson  25,  26 

Howe  v.  Derrel  704 

v.  Starkweather  121 

Hubbard  v.  Chappel  69 

v.  Russell  346 

Hubbersty    v.    Manch.,    Sheff.    & 

Lincolnsh.  Railw.  133 

Hubgh  v.  N.  O.  &  C.  Railw.  551 

Huddersfield  Canal  Co.  v.  Buckley 

178,  195,  197 
Hudson  v.  Carman  73,  92 

Hudson  &  Delaware  Canal  Co.  v. 

N.  Y.  &  Erie  Railw.  274 

Hudson  River  Railw.  v.  Outwater  299, 

385 
Hueston  v.  Eaton  &  H.  Railw.  351 
Hughes   v.    Chester   &   Holyhead 

Railw.  420 

v.  Parker  44 

v.  Providence  &  Worces- 
ter Railw.  316,  418 
Hull  Co.  v.  Wellesley  17,  180 
Humble  v.  Langston         124,  133,  134, 
138,  144,  146,  147,  148,  149 
v.  Mitchell                    120,  142 


TABLE    OF    CASES. 


lxxv 


Humfrey  v.  Dale  139 

Hunt  v.  Adams  135 

v.  Gunn  17 

v.  Test  607 

Hurd  v.  Rut.  &  Bur.  Railw.  507 

Hutchins,  Adm'r  v.  State  Bank         121 
Hutchinson  v.  Manchester,  Bury,  & 

Rossendale  Railw.   385 
v.  York    &    Newcastle 

Railw.  529,  544,  555 
Hutton  v.  London  &  S.  W.  Railw. 

234,  388 
Huyett   v.   Philadelphia   &  Read. 

Railw.  305,  476 

Hyam,  ex  parte  169 

Hyams  v.  Webster  261 

Hyatt  v.  Whipple  74 


I. 


111.  Cent.  Railw.  v.  Buckner  570 

v.  Dickerson  517 

v.  Downey  537 

v.  Goodwin  500 

v.  Jewell  544 

v.  Kanouse  509 

v.  Middlesmith  506 

v.  Middlesworth       489 
v.  Phelps  500,  517 

v.  Phillips  548 

v.  Reedy  520,  580 

v.  Sutton  98,  112 

v.  Swearngen  501, 

514,  517 
v.  United  States  247 
v.  Whalen  521 

v.  Williams  518 

Trunk   Railw.    v. 

411 

Illinois  &  Michigan  Canal  v.  Chica- 
go &  R.  I.  Railw.  260 
Illinois  River  Railw.  v.  Beers  207 
o.  Casey  79 
v.  Zimmer          79 
Illinois  &  Wisconsin  Railw.  u.  Van 

Horn  290,  292 

Imlay  v.  Union  Branch  Railw.  320 

Imperial  Gas  Light  &  Coke  Co.  v. 

Broadbent  351 

Imperial  Mercantile  Credit  Asso- 
ciation, in  re 
Ind.,  &c.  Railw.  v.  Elliott 
Indianapolis  Railw.  v.  Adkins 
v.  Gapen 
v.  Klein 
v.  Love 
Sparr 


Illinois    Grand 
Cook 


82 
521 
517 
512 
548,  555 
548,  555 
498 
v.  Williams        498 


Ind. 

Central  Railw.  v.  Hunter  278 

280 

v.  Leamon 

515 

v.  Moore    517 

521 

v.  Oakes 

286, 
350 

Ind. 

&  Cincin.  Railw.  v.  Caldwell, 

486, 
508 

Indiana,  &c.  Railw.  v.  Fisher 

512 

Ind. 

&  Cin.  Railw.  v.  Guard 

517 

v.  Jewett 

92 

v.  Kerch eval 

512 

v.  Kinney    488 

519 

v.  McKinney 

517 

v.  Meek      511 

524 

v.  Oestel 

516 

v.  Snelling 

521 

v.  Sparr 

498 

v.  Townsend 

511 

v.  Wharton 

499 

v.  Williams 

498 

v.  Wright 

516 

Ind. 

&   Madison    Railw.  v.  Solo- 

mon 

Ind.,  Pittsb.,  &  Cleve.  Railw.  v. 
Truitt 

Indiana  &  Ebensburg  Turnpike 
Co.  v.  Phillips 

Inge  v.  Birmingham  W.  &  S.  V. 
Railw.  Co. 

Ingersoll  v.  Stockbridge  &  Pitts- 
field  Railw. 

Inglis  v.  Great  Northern  Railw. 

Ins.  Co.  v.  Smith 

v.  Woodruff" 
Irish  Peat  Co.  v.  Phillips 
Irvine  v.  Turnpike  Co.      207,  210, 
Irvine  v.  Swann 

v.  Walker 
Isaacs  v.  Third  Av.  Railw. 
Isbell  v.  N.  Y.  &  N.  H.  Railw. 

523, 
Isham  v.  Ben.  Iron  Co. 


633 

516 

208 

143 

618 
178, 
600 
118 
479 
17 
273 
194 
194 
533 
521, 
572 
121 


Jackson  v.  Cocker  122,  144,  145 

v.  Lamphire  253 

v.  North  Wales  Railw.        451 
v.  People  696 

v.  Rutland   &  Burlington 

Railw.  267,  487,  519 

v.  Second  Av.  Railw.  533 

Jacob  v.  Louisville  279 

Jacobs  v.  Peterborough  &  Shirley 
Railw.  240 

Jacques  v.  Chambers  144, 161,  162,  163 


1  \  \  si 


■['AISLE    OF    CASES. 


till" 

156 

.l.uii.-.  River  &   Kanawha  Co.  o. 

iTs 

i  p,  Kennedy 

1  1 

i  Ra    h         Vpplegate 

511 

r.  Dougherty 

51  1 

(  oleman 

IK) 

Jenkins       1  oion  Turnpike  < '". 

21  ii  i 

.Kiii. 

661 

r.  Broughton 

224 

i-.  Great  Western  Railw. 

115 

Jepherson  p.  Hunt 

864 

Jetter       N    ••■  S     &  BL  Railw. 

632 

r.  Stead 

■1 1 5 

Joel  r.  Morrison 

536 

Johns  d.  Johns 

121 

Johnson,  ex  parti 

585 

v.  Andei  son 

315 

r.  A.  &  St.  L.  Railw. 

306 

p.  Bank  of  United  States 

L35 

.  i  oncord  Railw. 

L09 

r.  Hudson  River  Railw. 

567 

r.  McKissack 

099 

r.  Shrewsbury      &      B. 

Railw. 

G17 

r.  Wabash    &     M.    A'. 

Railw. 

217 

m  o.  S.  W.  R.  R.  Bank 

72 

Stoi  k  l>b  sonnt  (  o.  <\  Brown 

611, 

612 

.  &c.  Railw.  d.  Barrows 

697 

,v  N  .  1    Railw.  v.  Jones 

489 

I '.ml 

635 

r.  Festiniog  Railw. 

181 

/•.  Mersej  Hoard 

635 

v.  Portsmouth    &    Concord 

Railw. 

460 

1  <>lle<re 

437 

•'  sad,  &c.  Railw. 

681 

.'         &  1  )ow  p.  Chamberlain 

461 

pbs  '■.  Pebrer 

1  t5 

Jo}  p.  Jackson  &  Michigan  Plank- 

77 

.1      .  ■  -  Hull  Dock  1                 362, 

698 

iv.  \  e  n  JTork  &  New  Haven 

Railw. 

420 

tailw.  v.  Reeve         218 

604 

Justice,  &  .  i .  Hunt 

696 

K. 

K.  R.  &  R.  Railw.  d.  Marsh 

411 

.    Buffalo  Commercial 

156 

■    Johnson 

80 

e)    r.  London  B.  &  S.  C. 

Iw. 

564 

1     Louisville 

280 

Keech   v.   Bait.  &  Wash.  Railw.     74, 

498 
Keegan  o.  Great  Western  Railw.  544 
Keith  v.  Cheshire  Railw.  509,  510 


Kellogg  v.  Chi.  &  N.  W.  Railw. 

v.  Krauser 
Kelly  v.  Mayor  of  New  York 
Kemp  r.  London  &  Br.  Railw. 
Kerns  v.  O'Reilley 
Kennard  v.  Burton 
Kenna)  de  r.  Pacific  Railw. 
Kennebec    &    Portland   Railw.   v. 
Kendall 
r.  Waters 
Kennedy  v.  Colton 

v.  Panama  Mail  Co. 
Kennett  Xav.  Co.   v.   Withington 


477 
293 
529 
375 
437 
571 
569 

177 
172 
218 
226 

350 
311 


Kenn  stt's  Petition 

Kenosha,  Rockford,  &  Rock  Island 

Railw.  v.  Marsh  210 

Kent  v.  N.  Y.  Central  Railw.  464, 

615 
Kentucky,  Louisville,  &c.   Railw. 

r    Milton 
Keppell  v.  Bailey 
Kerr,  matter  of 
Kerridge  v.  Hesse 
Kerwliacker  v.  C.  C.  &  C.  Railw 


Kerwin,  ex  parte 

Kesee  v.  Chi.  &  N.  W.  Railw. 

Kidwell  v.  Bait.  &  Ohio  Railw 


Kidwelly  Canal  Co.  v.  Raby 
Kimball  v.  Cocheco  Railw. 

v.  Kennebec  &   Portland 
Railw. 
Kimber  v.  Barber 
Kimble   v.    White    Water    Valley 

(anal 
King  v.  Boston  &  Worcester  Railw. 


484 

2 

275 

11 

508, 

572 

135 

477, 

483 

.       436, 

437,  438 

9,  215 

363 


295 
609 

349 

544 
v.  Brecknock    &     Aberga- 
venny Canal  Navigation  659 
v.  Bristol  Dock  Co.  358,  677 

v.  (hipping  Norton  120 

v.  Commissioners  under  Lon- 
don Dock  Acts  392 
v.  Commissioners     of    Man- 
chester 375 
v.  Commissioners  of  Thames 

&  Lsis  357 

v.  Coopers  of  Newcastle-upon- 
Tyne  661 
v.  Dr.  Gower                            679 
v.  Elliott                     71,  118,  203 
v.  Gray's  Inn  690 


TABLE   OF    CASES. 


lxxvii 


King  v.  Great  Marlow  91 

v.  Hungerford  Market  Co.       375 
v.  Inhab.  of  Pennegoes  696 

V.  Justices  of  the  City  of  York  678 
v.  Justices  of  West  Riding  of 

Yorkshire  678 

v.  Langhorn  83,  89 

v.  Leeds  &  Selby  Railw.  358 

v.  London  Dock  Co.  357 

v.  Nottingham    Old   Water- 
works 685 
v.  Northleach     &     Whitney 

Roads  659 

v.  Pagham  317 

v.  Pasmore  76 

v.  Pease  475 

v.  Pedley  529 

v.  Proprietors  of  Bir.  Canal    670 

v.  Round  684 

v.  Theodorick  83 

v.  Whitaker  91 

v.  Wilts  &  Berks  Canal  Nav.  659 

v.  Winwick  91 

v.  Witham  Nav.  Co.  392 

v.  Wycombe  Railw.  370,  374 

Kipp  v.  Finger  661 

Kirk  v.  Bell  589 

v.  Guardians      of      Bromley 

Union  "    432 

Kish  v.  Venezuela  Railw.  592 

Klein  v.  Alton  &  Sangamon  Railw. 

176,  201 

Kline  v.  Cen.  Pacific  Railw.  114 

Knapp  v.  L.  C.  &  Dover  Railw.       373 

v.  McAuley  257 

Knight  v.  Abert  487 

v.  Barber  120 

v.  Carrolton  Railw.  410 

v.  Fox  528 

v.  Toledo  &  Wabash  Railw.  517 

Knorr  v.  Germantown  Railw.  349 

Knox  Co.  v.  Aspinwall  660,  677 

Koch  v.  Dauphin  268 

Kramer  v.  Cleve.  &  Pittsb.  Railw.  290 

Kyle  v.  Auburn  &  Roch.  Railw.      306, 

503 


L. 


L'Amoreux  v.  Gould  216 

Lacharme  v.  Quartz  Rock   Mari- 
posa Gold  Mining  Co.  689 
Lackland  v.  North  Missouri  Railw.  325 
Lafayette  &  Ind.  Railw.  v.  Shriner 

488,  490,  511,  519 
Lafayette  Plank-Road  Co.  v.  New 

Albany,  &c.  Railw.       305,  309,  359 
Laird  v.  Birkenhead  Railw.  242 

Lake  v.  Butler  415 


Lake  v.  Duke  of  Argyll  16 

Lake  Erie,  tvc.  Railw.  v.  Eckler      464 
Lake  Ontario,  A.  &  N.  Y.  Railw. 

v.  Mason  159,  204 

Lamb  v.  Lynd  679 

v.  North  London  Railw.         411 
Lamert  v.  Heath  139 

Lamprell  v.  Billericay  Union  625,  626, 
627,  628,  629 
Lancashire  &  Yorkshire  v.  EastL. 

Railw.  640 

Lancashire  &  Y.  Railw.  v.  Evans    357, 

388 
Lancaster   &    Carlisle    Railw.    v. 

Mary  port  &  Carlisle  Railw.  334 

Lancaster  Canal  Co.  v.  Parnaby      631 
Lance's  Appeal  246 

Land  Credit  Co.  of  Ireland  v.  Lord 

Fermoy  613 

Lane,  ex  parte  157,  600 

Langham  v.  Great  Northern  Railw. 

384,  388 
Langley  v.  Boston  &  Maine  R.  620 

Langlois  v.  Buffalo    &   Rochester 

Railw.  511,  547 

Langton  v.  Waite  86 

Lantis,  in  re  699 

Lathrop's  Charity  364 

Lauderbrun  v.  Duffy  305 

Laugher  v.  Pointer  528,  529 

Lawrence  v.  Great  N.  Railw.  305,  346, 

357 
v.  Knowles  138 

Lawton  v.  Fitchburg  Railw.  505 

Leach  v.  Fobes  142,  143 

Lead  Mining  Co.  v.  Merry  weather    611 
Leame  v.  Bray  537 

Leavitt  v.  Towle  315 

Lebanon  v.  Olcott  350 

Lee  v.  Milner  392,  669,  692 

Leech  v.  Caldwell  437 

Leeds  &T.  Railw.  v.  Fearnley  204,  205 
Lefever  v.  Lefever  151 

Legg  v.  Belfast  &  Bellamy  Railw.  364 
Lehey  v.  Hudson  River  Railw.  578 
Lehigh  Valley  Railw.  v.  Lazarus  307 
v.  Trone  305,  342 
Leigh  v.  Hind  414 

Lemmex  v.  Vermont  Cent.  Railw.      306 
Leominster  Canal  Co.  v.  Shrews- 
bury &  Hereford  Railw.  622 
Leonardsville  Bank  v.  Willard  74 
Lesher  v.  Wabash  Nav.  Co.     259,  263 
Levering  v.  Railway  Co.                     256 
Leviston  v.  Junction  Railw.              350 
Lewey's  Island  Railw.  v.  Bolton       179 
Lewis  v.  Billing  8 
v.  N.  Y.  Central  Railw.          469 
v.  Railw.                                   363 


lxxviii 


TABLE  OF  CASES. 


-.  i:  >b<  rtaon 

3  nith 
r.  \\  lini.  &  Manchester  Rail- 
way 

i 
I         gton  &  <  >hio  Railw.  v.  Apple- 

r.  <  Irmsby 
•   ■     &     West 


119 
15 

346 
260 

818 

241 


Rail*,  v.  <  handler 


288 


3i  12 

701 
691 
595 
641 

298 


( iambridge 

L76,  179,  189, 

200 

iples  179 

Lidfield  r.  Old  Colony  Railw.  567 

:  a  &  K.  Bank  r.  Richardson   208 

Lincoln  V.  Saratoga  &  Schenecta 

<lv  Railw. 

Lind  r.  [sle  of  Wight  Ferry   373,  674, 

675 
Lindsay  V.  The  Commissioners 
Lindsey  v.  Att'j  <  len. 

r.  Luckett 
Lindns  r.  Melrose 
Linfield  v.  Old  Colony  Railw. 

r.  Lobley 
Link'  v.  Newport,  A.  &  H.  Railw. 

260,  408 

Little  Miami  Railw.  v.  Collett  279 

v.  Naylor  281,410 

v.  Stevens  548,  555 

v.  Wetmore      536, 

537 

Littleton     Manufacturing    Co.   v. 

Parker  189 

Livennore  p.  Jamaica  280,  290 

Livingston  v.  Lynch  207 

v.  Mayor  of  Xew  York  315 
LlanneUy  Railw.  &  D.  Co.  v.  Lon- 
don &  X.  W.  Railw.  456 
Lloyd  v.  Mayor  of  New  York  :>:'<>'> 
i  ' .  Venables  163 
I            o.  Kekule  142 
»e  No.  1  d.  Lodge  No.  1  80 
'i  '•.  ( ionrtown                          200 
Londesborough,  ex  parte  14 
1..  .v  I'..  Railw.  /•.  Doak            473,  475 
London  &   Bir.  Railw.  v.  Grand 
•  I  inction  Canal  ( !o.              351.  393 
V.  Winter                            '  630 
:  >n&  Blackwall  Railw. r. Board 

of  Works  296 

''  ■  '•  358 

Mion  Railw.  v.  Fair- 
clough  127,  135,  178 

r.  Wilson  199 

I'-.  &  S.  C.  Railw.,  in  re    364 
V.    L.&   S.  W.  &  Ports- 
mouth Railw.  617 
London  Dock  Co.  v.  Knebell  42 
v.  Sinnott           630 


London  Grand  J.  Railw.  v.  Freeman  168, 

194 
v.  Graham  8,  168,  194 

London    Insurance   v.  London    & 

Westminster  Insurance  Co.  68 

London  &  N.W.  Railw.  v.  Ackrovd  239 
v.  Bradley  356,  388 

/ .  McMichael  192 

v.  Skerton  425 

v.  Smith  388,  389 

London  &  S.  W.  Railw.,  ex  parte 

Stevens  383 

v.  Southeastern  Railw.       617 
Londonderry  &  Coleraine  Railw., 

in  re  159 

Long  Island  Railw.,  matter  of    88,  99, 
168,  507,  703 
Lord  v.  Wormwood  519 

Lord  Bailiffs,  &c.  v.  Trinity  House  483 
Lord  Belhaven's  case  588 

Lord    Fitz    Hardinge  v.  G.  &  B. 

Canal  Co.  292 

Lord  James  Stuart  v.  London  & 

Northwestern  Railw.    29,  38,  40,  41 
Lord   Petre   v.  Eastern   Counties 

Railw.  28,  49 

Lord  Shrewsbury  v.  North  Staf- 
fordshire Railw.  18 
Lorymer  v.  Smith  128 
Louisville  Railw.  v.  Chappell  302 
Louisville,  Cincinnati,  &  Charles- 
ton Railw.  v.  Letson  78 
Lou.  &  Frankfort  Railw.  v.  Ballard  497, 

523 
v.  Milton  489,  506 

Louisville  &  Nashville  Branch 
Turnpike  Co.  v.  Nashville  & 
Kentucky  Turnpike  Co.  410 

Louisville   &  Nashville  Railw.  v. 

Collins  552 

v.  Felbern  556 

v.  Thompson  235,  278 

Louisville,  &c.  Railw.  v.  State  679 

Lovering  v.  Railw.  271 

Low  ».  Conn.  &  Pass.  Railw.        44,  52 

v.  Galena  &   Chicago   Union 

Railw.  261,  696 

Lowlier,  in  re,   v.  Mayor  of  New 

York  608 

Lowe  v.  E.  &  K.  Railw.  218 

v.  London  &  N.  W.  Railw.    458, 

626 

Lowell  v.  Boston  &  Lowell  Railw.  529, 

539,  562 
Lowry  v.  Muldrow  143 

Ludlow  v.  New  York  &  Harlem 

Railw.  237 

Lund,  ex  parte  169 

Lund  v.  Midland  Railw.  252 


TABLE    OP    CASES. 


lxxix 


Lunt  v.  London  &  N.  W.  Railw.  577 
Lycett  v.  Staff.  &  Uttexeter  Railw.  376 
Lycoming  County  v.  Gamble  468 

Lyman   v.    Boston    &   Worcester 

Railw.  476 

v.    Norwich  University        575 
Lyndsay  v.  Conn.  &  Pass.  Rivers 

Railw.  494 

Lyon  v.  Jerome  259,  297 


M. 


M.  &  C.  Railw.  v.  Blakeney  486 

v.  Orr  486 

M.  &  M.  Railw.  v.  Hodge  597 

M.  &  M.  Savings  Co.  v.  O.  F.  Hall 

Ass.  600 

Macedon  Plank-Road  v.  Laphani    209, 

216 
MacGregor  v.  Dover  &  Deal  Railw.  30, 
34,  45,  209 
Mackey    v.    New    York    Central 

Railw.  569 

Maclaren  v.  Stainton  163 

Macon  v.  Macon  &  Western  Railw.  254 
Macon  &  Western  Railw.  v.  Davis  492, 

567 
v.  McConnell  360 

Maddick  v.  Marshall  16 

Maddox  v.  Graham  686 

Madison  &  I.  Railw.  v.  Bacon  544,  555 
v.  Kane  508 

Mahon  v.  Utica  &  Sch.  Railw.  314 

Maiden     &    Melrose     Railw.     v. 

Charlestown  419 

Maltby  v.  N.  W.  Va.  Railw.  179 

Manchester  &  Lawrence  Railw.  v. 

Fisk  467 

Manchester    &    Leeds   Railw.    v. 

Reginam  425 

Manchester,    Sh.    &    Lincolnshire 

Railw.  v.  Great  Northern  Railw.   267 

o.  Wallis  487,  519 

v.  Wood  480 

Mangles  v.  Grand  Collier  Dock  Co.  168, 

171,  200 
Manley    v.   St.  Helen's    Canal    & 

Railw.  Co.  560 

Mann  v.  Cooke  163,  176,  219 

v.  Currie  168,  176,  195 

v.  Great  S.  &  W.  Railw.       282, 

348,  508 

o.  Pentz  172,  176,  182,  198 

Manning  v.  Commissioners  under 

W.  I.  Dock  Act      392 
v.  Eastern  Counties  Railw. 

392 
Manser  v.  N.  &  E.  Railw.  351 


Mansfield  &  Sandusky   Railw.   v. 

Veeder  436 

March  v.  C.  &  P.  Railw.  345 

Marine  Bank  of  Chicago  v.  Ogden    430 
Markham  v.  Brown  102 

Markwell,  ex  parte  15 

Marlborough  Man.  Co.  v.  Smith     125, 

584 
Marquis    of    Salisbury    v.    Great 

Northern  Railw.  322,  373 

Marriage     v.     Eastern     Counties 

Railw.  &c.  371 

Marsh  v.  Eastern  Railw.  642 

v.  N.  Y.  &  Erie  Railw.  489 

Marshall    v.  Baltimore     &     Ohio 

Railw.  606 

v.  Burton  698 

v.  Queensborough  604 

v.   Stewart  549 

Martin,  ex  parte  297 

v.  Board  of  Police  691 

v.  Lon.,     Ch..    &      Dover 

Railw.  364 

Mason  v.   Brooklyn   &   Newtown 

Railw.  412 

v.  Kennebec    &   Portland 

Railw.  305,  349 

v.  London,    Chatham,     & 

Dover  Railw.  368 

v.  Railway  286 

v .  Stokes  Bay  Pier  &  Railw. 

Co.  674 

Mass.  Iron  Co.  v.  Hooper  126 

Master's  case  169 

Masterton  ».  Mayor  of  Brooklyn    433 

Maudslay,  ex  parte  15 

Maund   v.   Monmouthshire    Canal 

Co.  535 

Maunsell    v.   M.    Great   Western 

(Ireland)  Railw.  51,  647 

Maxted  v.  Paine  138,  141 

Mayberry  v.  Concord  Railw.  520 

Mayo  Co.,  »»  re  696,699 

Mayor  v.  Randolph  317 

Mayor  and    Burgesses   of  Lynne 

Regis  67 

Mayor  &  Commonaltv  of  London 

&  Met.  R.  Co.  v.  Galloway  '         254 
Mayor,  &c.  of  City  of  New  York 

v.  Second  Avenue  Railw.  238 

Mayor,  &c.  of  Pittsburg  v.  Penn. 

Railw.  271 

Mayor,  &c.  of  Savannah  v.  State  693 
Mayor  of  Lichfield  v.  Simpson  351 
Mayor  of  Ludlow  v.  Charlton  430,  625, 

627,  628 

Mayor  of  Lynn  v.  Denton  228 

Mayor  of  New  York  v.  Bailey         529 

v.  Furze         346 


lxxx 


TABLE    OF    CASES. 


Mayor    of    Norwich    o.    Norfolk 

lw.  87, 

M  |  Southampton  v.  Greaves 

\    i  ,  &  Harlem  Railw. 
M    \  lister  r    Ind.  &  ( !in.  Railw. 
M    v i . i  1 . ■  p.  [rish  Lodine  < !o. 
\l    \m!.i\     r.    Western    Vermont 

Railw.  300, 

M<     ill  p.  Byram  Manuf.  Co. 

(  bamberlain 
McClasky  p.  Grand  Rapids  &  Ind. 

Railw. 
McCluer  p.   Manchester  &  Law- 

rence  Railw. 
\|  <  lure  v.  V.  W.  &  B.  Railw. 
Mi '  luakej  <•.  <  Iromwell 
■  •11  p.  ( laldwell 
M,(  tool  p.  •  ralena  &  Chicago  Union 

Railw. 

;n  ick    v.   Terre  Haute    & 

Richmond  Railw. 
M  i  ortnick  p.  Lafayette 
Mil  ii',  i-.  Cal.  &  Pacific  Railw. 

p.  Harnett  Co.  664, 

M.i  Iready  p.  Railw.  Co. 
McCulloch  r.  Maryland 
McCullough  v.  Annapolis  &  Elk 

Ridge  R. 
McDaniels  p.  Flower  Brook  Man. 

Co.  85 

McDougall  D.Jersey  Imperial  Ho 

ti  1  I  o.  71, 

McDowell  p.  X.  Y.  Central  Railw. 
McElroj     p.    Nashua    &     Lowell 

Railw. 
McEwen  p.  Woods 
McFarland  p.  Orange  &  Newark 

I  Imi  -i--< '  ir  Railw. 
M'<  ratrick  p.  Wason 
McGinity  p.  Mayor  of  New  York 
M  1 1  ■  ■■■  in  p.  Remington 
McGregor    p.    The    Manager    of 

Deal  A:  I »  >ver  Railw. 
Mi  I  [eran  p.  Melvin 
Mclntire  p.  State 

Mcintosh  p.  Great  Western  Railw. 
p.  Mid.  (  onirics  Railw. 
McKinley  p.  Ohio,  &c.  Railw. 
M<  Laughlan  r.  Charlotte  &  S.  C. 
Railw.  317, 

'-.  D.  &  M.  Railw.  75, 
M'Laughlin  p.  Pryor 
M  Mahan  '•.  Morrison 
McMahon  p.  <  Cincinnati  Railw. 
McManus  p.  <  larmicbael 

'  •  Cr  533, 

McMasterc  p.  '  Commonwealth 
McM  chael  p.  London  &  X.  W. 

Rai  I  w . 


644 
228 
563 
L86 
628 

463 
64 
199 

175 

619 
108 
464 

697 

523 

349 

299 
488 
677 
476 
62 

91 


85,  86 


154 
513 

632 
139 

413 
550 

634 
143 

645 
697 
278 
452 
445 
516 

319 
223 
538 
210 
280 
342 
534 
280 

205 


McMillan  V.  Mavsville  &  Lexing- 
ton Railw.  177,  185 
v.  Railroad  Co.  544 
v.  Saratoga    &     Wash. 

Railw.        511,  544,  551 
v.  Scott  146 

McRae  v.  Russell  201 

McRee  P.  Wilmington   &  Raleigh 

Railw.  274 

Meacham  v.  Fitchburg  Railw.  277,286, 

379 
Mead  v.  Keeler  74,  602 

Meason's  Estate  120 

Meikel  v.  German  Savings   Fund 

Society,  &C.  -        69 

Mellen  v.  Western  Railw.  345 

Mellors  v.  Shaw  544,  555 

Memphis   &  Charleston  Railw.  v. 

Payne  300 

Memphis    &   Charlotte   Railw.   v. 

Bibb  496 

Memphis  Freight  Co.  v.  Memphis    246 
Memphis  Railw.  v.  Wilcox  446 

Mendon  v.  County  Comrn.  696 

Mercer  v.  McWilliams  258,  299 

v.  Whall  283 

Mercer    County  v.    Pittsburgh    & 

Erie  Railw.  461 

Merrihew  v.  Milwaukie  &  Mis- 
sissippi Railw.  112 
Merrill  v.  Ithaca  &  Owego  Railw.  462 
Merritt  v.  Northern  Railw.  235 
Mersey  Docks  v.  Gibbs  575 
Mersey  Docks  &  Harbor  Board  v. 

Penhallow  635 

Met.  Railw.  v.  Woodhouse       373,  674 
Metcalfe  v.  Hetherington  634,  635 

Methodist    Episcopal    Church    v. 

Jaques  146 

Mexican  &  South  American  Com- 
pany, in  re  169 
Meyer  v.  North  Missouri  Railw.      498 
Mich.  Southern   &  Northern  Ind. 

Railw.  v.  Fisher  490,  493 

Michigan,  &c.  Railw.  v.  Shannon     512 
Mieklethwait  v.  Winter  281 

Middlesex  Turnpike  Co.  v.  Lock      207 
v.  Swan  175,  207 

».  Walker  207 

Middletown  Bank  v.  Magill  125 

Midland  Counties  Railw.  v.  Oswin  234, 

392 
Midland  G.  W.  Railw.   v.    Gordon    7, 

9,  168 
Midland  Railw.  v.  Daykin  487 

Miers  v.  Z.  &  M.  T.  Co.  183 

Mifflin  p.  Ilanisburg,  Portsmouth, 

M.  &  L.  Railw.  317 

Milburn  v.  City  of  Cedar  Rapids      323 


TABLE   OP   CASES. 


lxxxi 


Miles  v.  Bough  160,  600 

Milhau  v.  Sharp  250,  318 

Mill-Dam  Co.  v.  Dane  209 

Miller   v.    Auburn    &   Syracuse 

Railw.  235,  314 

v.  Ewer  63,  64 

v.  Illinois  Central  Railw.  & 

Schuyler  145 

v.  Pittsburg  &  Connellsville 

Railw.  188,  220 

v.  Second  Jefferson  Build- 
ing Association  198 
Milligan  v.  Wedge                              528 
Milner  v.  Field                                   455 
Milnes  v.  Gerry                           240,  454 
Milnor  v.  Georgia  Railw.  &  Bank- 
ing Co.                             437 
v.  New  Jersey  Railw.            276 
v.  Railway  Companies           337 
Milwaukie  &  Miss.  Railw.  v.  Eble,  280, 
297,  505,  508 


Minis  v.  Macon  &  W.  Railw 

Miners'  Bank  v.  United  States 

Minhinnah  v.  Haines 

Minor  v.  Mechanics1  Bank  of  Alex- 
andria 

Minot  v.  Curtis 

Mississipjii  Central  Railway  v.  Mil- 
ler 

Miss.  &  Mo.  Railw.  v.  Byington 

Miss.  &  Tenn.  Railw.  v.  Devaney 
v.  Harris 

Miss.,  O.  &  R.  Railw.  v 


379 

59 

677 

70 
66 


501 
272 
410 
119 

Cross  411, 
701,  704 
537 
139 
594 
201,  207 
474 
591 

Thomas     546 


Mitchell  v.  Crassweller 
v.  Newhall 
v.  Rockland 
v.  Rome  Railw. 

Mitchil  v.  Alestree 

Mixer's  case 

Mobile  &  Ohio  Railw.  v. 

Mohawk  &  Hudson  Railw.,  matter 
of  89 

Mohawk   Bridge   Co.  v.  Utica  & 
Sch.  Railw.  274 

Mold  v.  Wheatcroft  243,  367 

Mollett  v.  Robinson  137 

Monchet  v.  Great  Western  Rail- 
way 388 

Money  v.  Macleod  606 

Moneypenny  v.  Hartland  11 

Monkland  &  Kir.  Railw.  v.  Dixon   394 

Monmouthshire  Canal  Co.  v.  Har- 
ford 3 

Monongahela   Navigation    Co.  v. 
Coons  248,  250,  310 

Montgomery  &  West  Point  Railw. 
v.  Vainer  290 

Mony penny  v.  Monypenny  42 


Moody  v.  Corbett  395 

Moore  v.  Fitchburg  Railw.  541 

Moore  v.  Great  Southern  &  West- 
ern Railw.  354 
v.    Hudson   River   Railw.  459, 
460 
v.  New  Albany  &    Salem 

Railw.  211 

Moorhead  v.  Little  Miami  Railw.  253, 

410 

Morgan  v.  Birnie  438 

v.  King  343 

v.  Met.  Railw.  376 

v.  New  York   &  Albany 

Railw.  183 

v.  Vale  of  Neath  Railw.     545 

Morris  Canal  &  Banking  Co.  v. 

Ryerson  359 

v.  Townsend  94 

Morris  &  Essex  Railw.  v.  Blair  334 

v.  Central  Railw.        411,  464 

v.  Newark  311,  318 

Morrison  v.  Davis  482 

v.  Steam  Nav.  Co.  573 

Morse,  Petitioner  282,  662,  680 

v.  Auburn  &  Syr.  Railw.       538 

v.  Rut.  &  Bur.  Railw.  519 

Morss  v.  Boston  &  Maine  Railw.     507 

Mortimer  v.  McCallan  128 

v.  South  Wales  Railw.      391 

Morton  v.  Barrett  146 

Moshier  v.  Utica  &  Sch.  Railw.        495 

Mount    Washington    Road    Co., 

matter  of  280 

Mowatt,  ex  parte  14 

v.  Londesborough  14 

Mozley  v.  Alston  93,  620 

Mullins  v.  People  696 

Mumma  v.  Potomac  Co.  182 

Munger   v.    Tonawanda  Railw.     268, 

271,  520 
Munn  v.  Barnum  138 

Munns  v.  Isle  of  Wight  Railw.  301 

Munt  v.  Shrewsbury   &   Chester 

Railw.  208,  209 

March  v.  Concord  Railw.  618,  632 

Murdoch's  Appeal  679 

Murphy  v.  City  of  Chicago       239,  564 

v.  Deane  569 

Murray  v.  Currie  528 

v.  De  Rottenham  146 

v.  Railroad  Co.    418,  492,  581 

v.  South  Car.  Railw.  555 

v.  South  Sea  Railw.  544 

Mutual  Savings  Bank  v.  Meriden 

Agency  Co.  604 

Myers  v.  Myers  146 

v.  Perigal  120 


/ 


l\X\li 


TABLE   OF   CASES. 


Napier,  ez  parti  679 

Narragansett     Bank    v.    Atlantic 
Silk  ■  228 

689 
Nashville  Railw.  v.  Cowardin  263, 

111 
v.  Dickerson  278 

Nashville  &  Ch.  Railw.  v.  Peacock  511 
Nason  '.  Woonsocket  Union  liailw. 

307 

Nathan  v.  Whitlock  182 

Natusch  r.  Irving  207,  208 

o.  Pittsburgh  &  Connellsville 

Railw.  256 

X.  all  r.  Hill  703 

Needham  v.  S.  F.  &  S.  J.  Railw.    489 
Nellia  v.  New  York  Central  Railw.  468 
r.  Baton  604 

o.  Vt.  <V  Canada  Railw.  618 
Nesbitt  r.  L.  C.  &  C.  Railw.  433,  437 
River  Nav.  Co.  v.  Commis- 
sioners of  Newbern  221 
Neville  v.  Wilkinson  20,48 
Ne\  ins  t>.  1  Lenderson  16 
Nevitt  v.  Bank  of  Port  Gibson  183 
New  Albany  &  C.  Railw.  v.  Ilig- 

man  312 

,-.  Buff  312 

New  Albany    &  Salem  Railw.  v. 

Connelly  350 

v.  Grooms  663 

V.  .Maiden  514 

v.  Pickens  177 

Albany,  &c  Railw.  v.  McNa- 

mara  488 

Ubany  Railw.  v.  O'Daily        325 

v.  Pace  514 

v.  Tilton  514 

N.  B.  &  Canada  L.  Co.  v.  Mug- 

gerid  131,592 

l'x-dford   Turnpike    Co.    v. 
Adams  174 

Newbury  v.  Conn.  &  Pass.  Rivers 
Railw.  562 

iryport  Bridge  Co.  v.  Story    175 
\  i '.  ( lolt'a  Patent  Fire  Arms 
Co.  63 

&  R.  Railw.  v.  P.  & 
..  Railw.  273 

astle,   &c.  Turnpike   Co.  v. 
North  Staffordshire  Railw.  424 

N.  Hampshire  Central  Railw.  v. 
Johnson  177,189 

Ji  rsey  Railw.  v.  Suydam         283 
London  v.  Brainard  253 

in-,  Jackson,  &c.  Railw. 
v.  Harris  78,  79 


N.  O.  &  C.  Railw.  v.  Second  Mu- 

nicipalitv  (if  New  Orleans  410 

New  <  Means  &  O.  Railw.  v.  Lea  229 
Newport  Mech.  Co.  v.  Starbird  67 
New  River  Co.  v.  Johnson  354 

Newry   &   Enniskillen   Railw.    v. 

Coombe  205 

v.  Edmunds  159,  170 

Newry,  W.  &  It.  Railw.  v.  Moss     169. 

Newton  v.  Belcher  12 

v.  Liddiard  12 

New  York  Central  Railw.  in  re  271 

v.  Marvin     295 

New  York  City  &  Erie  Railw.  v. 

Patrick  196 

N.  Y.  &  Erie  Railw.  v.  Skinner  492,  506, 

507,  520 

v.  Young  263 

New  York  Exchange  Co.  v.  De  Wolf  173 

New  Y.  &  H.  Railw.  in  re  262 

v.  Forty-second  Street 

&  G.  F.  S.  Railw.      563 
New  York  &  Md.  Line  Railw.  v. 

Winans  618 

N.  Y.  &  N.  H.  Railw.  v.  Ketchum  599 
Niagara    Falls    &   Lake   Ontario 

Railw.  v.  Hotchkiss  253 

Nicol,  ex  parte  153 

Nicholson  v.  Erie  Railw.  569 

v.  New  York    &   New 

Haven  R.  283,  316,  319 
Nicklin  v.  Williams  576 

Nicoll  v.  N.  Y.  &  Erie  Railw.  269,  270 
Nixon  v.  Brownlow  206 

v.  Taff  Vale  Railw.       432,  442 
Norris  v.  Androscoggin  Railw.         496 
v.  Cooper  10 

v.  Irish  Land  Co.  161 

v.  Vermont  Central  Railw.  235, 
426 
Northam,  B.  &  Roads  Co.  v.  Lon- 
don &  Southampton  Railw.  417 
North  American  Colonial  Associa- 
tion of  Ireland  v.  Bentley  159 
North  British  Railw.  v.  Tod     404,  672 
North  Carolina  Railw.  v.  Leach      172, 

205,  213 

North  Eastern  Rail.  v.  Elliott,  238,  313 

v.  Payne  411 

v.  Sineath  506,  508 

North  Mo.  Railw.  v.  Gott        252,  295 

v.  Lackland         252 

v.  Winkler  186 

North  Penn.  Railw.  v.  Rehman       264, 

518 
North  Shields  Quay  Co.  v.  David- 
son 172 
North  Staffordshire  Railw.  v.  Dale  419 
v.  Landor  378 


TABLE   OF   CASES. 


lxxxiii 


North  Staffordshire  Raihv.  v.  Wood  380 

North  W.  Raihv.  v.  MeMichael        204 

Northern    Raihv.    v.    Concord    & 

Claremont  Raihv.  246 

v.  Miller         176,  210 

v.  Page  109 

Northern  Cent.  Raihv.  v.  Canton  Co. 

236 
Northern  Ind.  Railw.  v.  Martin  512 
Northumberland  v.  At.  &  St.  Law. 

Raihv.  570 

Northwestern  Railw.  v.  Martin         442 
Norton  v.  Valentine  346 

Norwich  &  Lowestoft  Navigation 

Co.  v.  Theobald  119,  189 

Norwich    &   Worcester   Railw.   v. 

Cahill  430 

v.  Killingley  419 

Nowell  v.  Andover  &  R.  Raihv.        596 
Noyes   v.    Rutland    &   Burlington 

Railw.  532,  629 

v.    Smith  551,  555,  556 

v.    Spalding  124,  128 

Nulbrown  v.  Thornton  144 

Nutter  v.  Lexington  &  West  Cam- 
bridge Railw.  188 


0. 


Bait. 

572, 


O'Brien    v.    Phil.,  Wih,  & 

Railw. 
O'Connor  v.  Pittsburgh 

v.  Spaight 
O'Donald  v.  E.  Ind.  &  CI.  Railw. 
O'Donnell  v.  Alleghany  V.  Railw. 
O'Harra  v.  Lexington  Railw. 
O'Neal  v.  King 
Oakes  v.  Oakes 

Ogdensburgh,  Rome  &  Clay  Railw. 
v.  Frost  71, 

Ogdensburg  Railw.  v.  Wolley 
Ogle  v.  Graham 
Ohio,  &c.  Railw.  v.  Ridge 
Ohio  &  Miss.  Railw.  v.  Dunbar 
v.  Irvin 

v.  Ind.  &  Cin.  R.  617, 
v.  Jones 
v.  Meisenheimer 
v.  Quier 
v.  Shanefelt 
v.  Taylor 
Ohio    &   Pennsylvania    Railw.    v. 

Wallace 
Old  Colony  Railw.  v.  Evans 
Old   Colony    &  F.   R.    Railw.  v. 

County  of  Plymouth 
Oldtown  &  Lincoln  Railw.  v.  Vea- 
zie 


575 
317 
442 
68 
551 
297 
190 
163 

176 
188 
135 
58 
618 
499 
649 
518 
518 
512 
477 
500 

282 
143 

420 

190 


Oriental  I.  Steam  Co.  v.  Briggs 

Ormond  v.  Holland  546, 

Ornamental  Pyrographic  Wood- 
work Co.  v.  Brown 

Orono  v.  Wedgeworth 

Orpen,  ex  parte 

Orr  v.  Bank  of  United  States 
v.  Bigelow 

v.  Gl.  A.  &  M.  J.  Railw. 
v.    Glasgow,    A.    &    M.    J. 
Raihv. 

Osborn  v.  Bank  of  U.  States       62, 

Oswego  Falls  Bridge  Co.  v.  Fish 

Others  v.  The  Plank-Road  Com- 
panies 

Ottawa  v.  Chicago,  &c.  R. 

Ottoman  Co.  v.  Farley 

Overend  Gurney  &  Co.  v.  Giff 

Overmyer  v.  Williams 

Overton  v.  Freeman 

Owen  v.  Purdy 

v.  Van  Uster 

Owings  v.  Speed 

Oxford,  Worcester,  &  Wolver- 
hampton Railw.  v.  South  Staf- 
fordshire Railw. 


75, 
131 
555 

71 
74 
126 
111 
128 
180 

598 
208 
253 

337 

697 
612 
596 
267 
528 
77 
596 
228 


267 


P. 

P.  &  K.  Railw.  v.  Dunn  177 

Pacific  Railw.  v.  Chrystal  279 

v.  Hughes  211 

v.  Renshaw  210 

v.  Seely  644 

Pack  v.  Mayor  of  New  York  529 

Page  v.  Heineberg  265 

Paige  v.  Smith  637 

Paine  v.  Hutchinson  146 

Palmer     v.  Hungerford     Market, 

matter  of  361 

Palmer  v.  Lawrence  176 

v.  Woodbury  701 

Co.  v.  Ferrill  280 

Pardoe  v.  Price  687 

Parish  v.  Pai'ish  143 

Parker  v.  Adams  567 

v.  Boston  &  Maine  Railw.  286, 

288,  307,  399,  562 

v.  Bristol  &  Exeter  Railw.  466 

v.  Cutter  Milldam  Co.  335 

v.  Great  Western  Railw.  466 

V.  Perkins  240 

v.  Rensselaer  &  Saratoga 

Railw.  '  618 

v.  Smith  701 

v.  Thomas  186,  187 

Parkes,  ex  parte  693 


lxxxiv 


TABLE    OF    CASES. 


Parke  V\  ■  stern  Railw.     439 

ton  278 

elee  v.  O  Syracuse 

Iw. 
Parnab]  p.  Lancaster  ( 'anal  Co. 


379 

631, 
634 
597 
259 
336 
.",11 


Railw. 
251, 


558 
602 
(598 
528 
189 
586 
406 
341 
479 


1 

I ' 

Pat.  &   New.  Railw.  p.  Stevens 
Gas  Light  ( 'u.  p.  Brady 
p.  Northern  Centra]  Railw.  308 
1  ;  ScN.W.  Railw.  458 

Paulmi  Railw. 

Popham 
:•.  p.  Buenfcillo 
Rowland 
Peake  p.  Wabash  Railw. 
ML  &  I.  &  P.  &  I 
p.  Wycombe  Railw 
v  p.  i  lalais  Railw. 
.-.  North  Staffordshire  Railw 
Pell  p.   Northampton  &  Banbury 

Railw.  374,  384 

Pendl  Railw.  p.  Shires    116 

Railw.   r .  I  lummer        177, 

189,  190 

v.  White      92,  117,  188,  189, 

594 

.  Kennebec  Railw.  v. 

172,  190 
I  I  anal  ( !o.  v.  Bentley  569 

Railw.  I?.  The  Commonwealth  468 
p.  1  taquesne  Borough  424 
v.  Hi  294,  295 

v.  Keillor 
p.  Kerr 

v.  McClure  294 

p.  Porter  255 

p.Riley  294 

sylvania,  State  of,  p.  Wheel- 
ing Bridg  337,343 
359,  699 
I                 Albany  &  Vt.  Railw.        674 
Auditor   of  Public  Ac- 


nts 
p.  Batchelor 
p.  B(  i 
oton 
rd  of  Del 
ard  of  Health 


ry] 
illins 


659 

84,  *5 
661 
436 
696 
696,  698, 
699 
99 
337 
Ii7!  I 
679 


'  ia  C.  P. 

mmissioners  of  Hudson  661 

»i  N.  York     679,  691 

rett  661 

'•  i    .   I  -l-idge  of  Columbia  294 


People  v.  Hatch 
p.  Haws 
r.  Hayden 

p.  Head 

v.  Hester 
v.  Hilliard 


679 
6"j8,  679 

299 
657,  691 

696 

695 


v.  J.  &  M.  Plank-Road  Co.  468, 
705 
v.  Jillson  99 

v.  Kerr  276,  322 

v.  Mayor  of  Brooklyn         246, 
279,  280 
v.  Mead  677 

v.  Michigan  Southern  Rail- 
way    _  300 
v.  New   York    &    Central 

Railw.  573 

v.  N.  Y.  &  Harlem  Railw.  239, 
327 
v.  Pacific   Mail    Steam   S. 

Co.  689 

v.  Peabody  699 

v.  Rensselaer   &   Saratoga 

Railw.  '     337 

v.  Ridgely  701 

v.  River  Raisin  &  L.  Erie 

Railw.  703 

v.  Romert  659 

v.  Scannell  703 

v.  Superv.  of  West  Ches- 
ter 693 
v.  Third  Avenue  Railw.         326 
v.  Thompson                  691,  703 
v.  Throop                       228,  661 
v.  Troy  House  Co.  71 
v.  Trustees  of  Geneva  Col- 
lege 64 
v.  Van  Alstyne                      696 
v.  Vanderbilt                          344 
v.  Wheeler                             696 
v.  White     •                    268,  270 
v.  Wood                                 695 
Peoria  &  Oquawka  Railw.  v.  Elt- 

ing  178,  211 

Perkins  v.  Eastern  Railw.   &  The 

Boston  &  Maine  Railw.         487,  519 
Perkins   v.  Hart  614 

Perley  v.  Eastern  Railw.  483 

Perrine  v.    Ches.    &    Del.    Canal 

Co.  253 

Perry  v.  Marsh  551 

P.  Simpson.  &c.  Co.  594 

Perth   Amboy  Steamboat   Co.    v. 

Parker  73 

Peru  Railw.  v.  Hasketl  .  511 

Peters   v.   St.    Louis    &   Iron   M. 

Railw.  464,  615 

Pettibone  v.  La  Crosse  &  Milwau- 
kie  Railw.  352 


TABLE    OF    CASES. 


lxxxv 


Pfeifer  v.   Sheboygan  &  Fond  du 

Lac  Railw. 
Phelps  v.  Lyle 
Phene  v.  Gillan 
Philadelphia  Railw.  v.  Trimble 
Phil.,  Germantuwn,   &  N.  Railw. 
v.  Wilt.  Ill,  487,  534, 

Phil.  &  Erie  Railw.  v.  Atlantic  & 

Gt.  W.  Railw. 
Philadelphia  &  Reading  Railw.  v. 
City  of  Philadelphia 
v.  Derby 

v.  Yeiser  299, 

Philadelphia  &  Trenton  Railw 

310, 
Philad.  &  West  Chester  Railw.  v. 
Hickman  201, 

Philadelphia,  Wilmington,  &  Balti- 
more Railw.  v.  Cowell 

v.  Howard         442, 
v.  Kerr 

v.  Quigley         540, 
v.  Trimble 
Phillips  v.  Veazie 
Phoenix  Life  Assurance  Co. 
Pickard  v.   Smith 
Pickering  v.  Ilfracombe  Railw. 

v.  Stephenson 
Pier  v.  Finel 

Pierce  v.  Wore.  &  Nash.  Railw. 
Piggott  v.  Eastern  Counties  Railw. 

Pinkerton  v.  Manchester  &  Law- 
rence Railw.  158, 

Pinkett  v.  Wright 

Piscataqua  Ferry  Co.  v.  Jones 

176,  187, 

Pitts.  &  H.  W.  Rail.  v.  Dunn 

Pittsburgh  v.  Scott 

Pittsburgh  &  Connellsville  Railw. 
v.  Clark  125, 

v.  Stewart 

Pittsburg,    Ft.    W.    &   C.   Railw. 
v.  Devinney 
v.  Evans 
v.  Gilleland  .  278, 

Pittsburg   &   Steubenville    Railw. 
v.  Hall 

Pittsfield  &  North  Adams  Railw.. 
v.  Foster 


286, 
Plank-Road  v.  Buff.  &  P.  Railw. 


v.  Payne 
Planche  v.  Colburn 
Plant  v.  Long  Island  Railw. 


433, 
315, 


Planters1  &  Merchants'  Bank  v. 

Leavens 
Plate  Glass  Ins.  Co.  v.  Sunley 


353 
93 

146 

287 

536 

653 

276 
536 

305 

250, 

314 

219 

224 
630 
578 
595 
505 
562 
170 
635 
184 
612 
108 
479 
473, 
474 

166 
164 
119, 
201 
569 
300 

166 

220 

545 
571 
310 

288 

296 
268, 
298 
176 
614 
311, 
317 

121 

198 


Plum  v.  Morris   Canal  &  Banking 

Co.  and  the  City  of  Newark  317 

Plymouth  Railw.  v.  Colwell  266,  412 
Pochelu  v.  Kemper  69 

Pollard  v.  Hagan  247 

Poler  v.  New  York  Central  Railw. 

494,  509 
Pollock  v.  Stables  139 

Polly  v.  S.  &  W.  Railw.  258 

Pomeroy  v.  Chi.  &  Milw.  Railw.  324 
Pontchartrain  Railw.  v.  Lafayette 

&  Pont.  Railw.  412 

Poole  v.  Middleton  131 

Pope  v.  Great  Eastern  Railw.  376 

Porchcr  v.  Gardner  35 

Port  of  London  Assurance  Com- 
pany's case  88 
Porter  v.  Androscoggin  &  Ken.  R.  630 
.    v.  Buckfield  Branch  Railw.    435 
v.  County  Commissioners       286 
Portland,     Saco,     &     Portsmouth 

Railw.  v.  Graham  179,  200 

Pott  v.  Flather  142 

Potts  v.  Thames  Haven   Dock  & 

Railw.  Co.  42 

Pottstown.  Gas  Co.  v.  Murphy  304 

Poulton  v.  London  &  S.  W.  Railw.  541 
Powell  v.  Han.  &  St.  Jos.  Railw.  498 
Powers  v.  Bears  294,  300,  351 

Powles  v.  Page  584 

Poynder  v.  Great  N.  Railw.  258, 

383,  385 
Pratt  v.  Atlantic  &  St.   Lawrence 

Railw.  479 

Prendergast  v.  Turton  226 

Presbrey  v.  O.  C.  &  N.  Railw.  307,  348 
Preston  v.  Dub.  &  Pacific  Radw.  265 
v.  Eastern  Counties  Railw.  346 
v.  Grand  Collier  Dock  Co.  171 
v.  Liverpool  &  M.  Rail.  19,  50 
v.  Liverpool,  M.  &  New- 
castle-upon-Tyne J.  R. 

37,  41 

v.  Norfolk  Railw.  346 

Price  v.  Denb.  R.  &  C.  Railw.  143 

v.  Grand  Rapids  &  I.  R.  Co.  175 

v.  N.  J.  Railw.  489 

v.  Powell  581 

v.  Price  120 

Prichard  v.  La  Crosse  &  Mil.  Railw.  493 

Priestly  v.  Foulds  424 

v.  Fowler  544,  549,  554 

v.  Manchester    &    Leeds 

Railw.  351,  394 

Proprietors  of  Locks  &  Canals  v. 

Nashua  &  Lowell  Railw.      237,  287, 

308,  359 

Proprietors    of    Quincy    Canal   v. 

Newcomb  316 


1  x  \  x  \  i 


TABLE    OF    CASES. 


Protzman  v.  Ind.  \  Cin.  Railw.      250, 

■.  822 
ence    Bank    r.    Billings    & 
Pittraan  63,  258 

>sl  \  Fellows  of  Eton  < lolli 
r.  ( Ireal  Western  Railw.  15 

Pryse  p.  <  'ambrian  Railw.  2  l"> 

Pulsford  r.  Richards  224 

Pulling   p.    London,   Chatham,   & 

Dover  Railw.  370 

Pumpelly  v.  Green  Bay  Co.      249,  250 
Putney  r.  <  lape  Town  Railw.  488 

Q. 

Quarman  p.  Burnett  528,  529 

n  r.  Birmingham  &  Glouces- 
ter Railw.  533 
p.  Birmingham    >A:   Oxford 

.1.  Railw.  372 

p.   Bloyzard  7":; 

p.  Bristol  &  Exeter  Railw.  659 
p.  ( lambrian  Railw.  357 

p.  Commissioners  of  Woods 

&  1  ■ 
r.  1  Hxon  696 

-■■.   Eastern  Counties  Railw.  2  19, 
250,  659,  671 
p.  I  li  of  England 

Railw. 
v.  Lane.  &  Yorkshire  II.      665 
v.  Lofthome  703 

p.  Lon.  &  G.  Rail.  3G9 

p.  London  &  S.  W.  Railw.  370 
p.  L.  &  Southampton  Railw.  362 
p.  Man.  &  Leeds  Railw.  660 
p.  Met.  &  D.  Railw.  398 

p.  North  Union  R.  357,  660 
r.   Norwich      &      Brandon 

Railw. 

p.  Stone  376 

r.   fork  N.  Midland  R.  673,  685 

Quicke,  ex  parte  373,  674 

Quimby  r.  Vermont  Central  R.       504, 

506,  575,  579,  580 

Quiner  v.  Marblehead  [ns.  Co.        124 


R. 


R.  p.  Comm.  of  Dean  Enclosure  658 

of  York  660 

B        -1     i  658 

Severn  &  Wye  Railw. 

R.  p.  Tower  689 
D.  B.  Railw.  p.  Del.  &  R. 

Railw.  33] 


R.  &  (J.  Railw.  v.   1 1  tvis 


58,  302 


Radcliffo.  Alavor  of  Brooklyn         310, 

321,  346 

Raiford  p.  M.  Cent.  Railw.  486 

Railroad,  ea  parte  316 

v.  Boyer  ^288 

v.  Davis  268 

p,  Johnson  293 

v.  Norton  574 

p.  Roderigues  172,  178,  215 
v.  Skinner  491,  506 

Railsback  p.   Liberty  &  Abington 

Turnpike  Co.  73,  210 

Railstone   p.  York,  Newcastle,  & 

B.  Railw.  387 

Railw.  Co.  p.  Barron  632 

v.  Burlier  288 

v.  Gilson  278,  283 

p.  Graham  178 

v.  Howard  604 

p.  Hummed  360 

v.  Lagarde  279 

p.  Washington  306 

p.  Whitton's  Adm.  570 

Ramsden    v.    Boston    &    Albany 

Railw.  533 

v.  Dyson  235 

v.  Manchester,  S.  J.  & 

A.  Railw.  296,  314,  369 

Ranch  v.  Lloyd  &  Hill  574 

Randleson  p.  Murray  529 

Rami  p.  Townshend  393 

p.  White  Mountain  Railw.       142 

Randall  r.  Cheshire  Turnpike  Co.   634 

Randle  p.  Williams  699 

Rangeley  p.  Midland  R.  261 

Ranger  p.  Great  Western  Railw.    407, 

427,  436,  439,  442,  447 

Ranken  p.  E.  &  W.  I.  &  B.  J. 

Railw.  383 

Ranson     v.    Stonington     Savings 

Bank  688 

Raphael  p.  Thames  Valley  R.  243,  244 
Rapson  p.  (  ubitt  528 

Rathbone  v.  Tioga  Nav.  Co.  235,  265, 

430 
Rayner,  ex  parte  130 

Reaveley,  ex  parte  205 

•Redmond  v.  Dickerson  605 

Reed  p.  Hanover  Br.  Railw.  296 

Reedie  v.  London  &  N.  W.  Railw.  ;">-_:*, 

529 
Reese  &  Fisher  v.  Bank  of  Com- 
merce 126 
Reese    River  Silver  Mining  Co  v. 

Smith  225 

Reg.  p.  Abrahams  690 

v.  Ambergate  &  C.  R.  Co.     375, 

673,  683 

p.  Baldwin  684 


TABLE   OF   CASES. 


lxxxvii 


Reg.  v.  Bell  697 

v.  Bingham  693 

v.  Bir.  &  Glouc.  Railw.  425,  677, 
682,  683 
v.  Bir.  &  Oxford  Railw.  663 

v.  Blackwall  Railw.  693 

v.  Brighton  &  8.  C.  Railw.  662 
v.  Bristol  Dock  Co.  676,  694 
v.  Bristol  &  Exeter  Co.  687,  697, 

698 
v.  Burslem  Board  of  Health  664 
v.  Caledonia  Railw.        407,  672, 

676,  685 
v.  Chester  660 
v.  Comm.  of  Norfolk  621 
v.  Comm.   of  Woods  &  For- 
ests 676 

v.  Comm.  for  the  So.  Holland 

Drainage  377 

v.  Cottle  372 

v.  Dean  &  Chapter,  of  Ches- 
ter 679 
v.  Dean    &    Chapter    of 

Rochester  680 

v.  Deptford  Improvement  Co.  685 
v.  Derbyshire  &  S.  W.  Railw.  660 
v.    Dundalk    &    Enniskillen 

Railw.  675,  682 

v.  E.  Anglian  Railw.  662 

v.  E.  Lancashire  Railw.  660 

v.  E.  &  W.  I.  Docks  &  B.  J. 

R.  416,  417,  685 

v.  Eastern  Counties  R.  312,  355, 

357,391,425,660,662,673, 

677,  683 
v.  Ely  424 
v.  Fall  662 
v.  Fisher  358 
v.  Frere  107 
v.  Gamble  &  Bird  695 
v.  General  Cemetery  Co.  132,  157 
v.  Great  W.  Railw.  660,  673,  682 
v.  Green  662 
v.  Grimshaw  90 
v.  Hammond  697 
v.  Hampton  702 
v.  Heart  of  Oak  Benefit  So.  691 
v.  Hopkins  66  L 
v.  Hull  &  Selby  Railw.  686 
v.  Jones  660 
v.  Justices  of  Middlesex  662 
v.  Justices  of  Warwickshire  660 
v.  L.  &  C.  Railw.  690 
v.  Lane.  &  Preston  Railw.  699 
v.  Lane.  &  York  Railw.  673,  682, 

683,  692 
v.  Ledgard    et    als.   M.    of 

Boole  660 

v.  L.  &  L.  Canal  Co.  692 


Res:. 


Liv.  Man.  &  Newcastle- 
upon-Tyne  R.  Co.  156,  693 
London  &  Bir.  Railw.  425, 
677 
London  &  Blackwall  Railw.  662 
L.  &  Greenw.  R.  Bo.  368 

Londonderry  &  Col.  Railw. 

Co.  159 

Lon.  &  Northwestern  R.  389, 
682,  692,  697 
Lund  it'  96 

Mane.  &  Leeds  R.  Co.       377, 
677,  694,  695,  700 
Mariquita  Mining  Co.  229 

Mavor  of  Bridgenorth  662 
Mayor  of  Cambridge  662,  683 
Major  of  Chester  680 

Mavor  of  Dartmouth  662 

Mayor  of  Poole  684 

Mayor  &  Assrs.  of  Roches- 
ter 680 
Mayor  of  Staniford  687 
Mayor  of  York  683 
Met.  Comm.  of  Sewers  389 
Met.  Board  of  Works  354 
Mid.  Counties  &  Sh.  Junc- 
tion Railw.  157,  690 
Musson  335 
Newcastle-upon-Tyne  677 
N.  Midland  Railw.  358,  687 
Norwich  &  Boston  Railw.  658, 
660 
v.  Pavn  684 
v.  Pickles  660 
v.  Port  of  Southampton  658,  684 
v.  Registrar  66 
v.  Revnolds  699 
v.  Rigby  425 
v.  Rochdale  &  Hal.  &  S.  R.  693 
v.  Russell  423,  424 
v.  Saddlers'  Co.  96,  229,  684 
v.  Saffron-Walden  Railw.  414 
v.  St.  Catherine's  Dock  686 
v.  St.  Margaret's,  Leicester  684 
v.  St.  Olaves 
v.  St.  Pancras 
v.  St.  Saviour 
v.  St.  Peter's  College 
v.  Sharpe 
v.  Sheffield  A.  &  M.  Railw. 

698,  699 
v.  Sheriff  of  Middlesex  368 

v.  Sheriff  of  Warwickshire  678 
v.  Southeastern  Railw.  359,  418 
v.  South  Holland  Drainage  700 
v.  South  Wales  Railw. 
v.  Thames  &  Issis  Com. 
v.  Townsend 
v.  Train 


698 
683 
662 
662 
425 
697, 


267 
662 

693 
422 


lxxxviii 


i  \i;le  OF  CASES. 


Reg.  p.  Trustees  of  Balby  &  Work 
Bop  Turnpike 

p.   trustees  of  Luton  Roads 

r.  Trustees  ol  Swansea  Har- 
bor 

r.  United  Kingdom  Tele- 
graph < '". 

r.  Victoria    Park   Co.   181, 


687 
676 

:;77 

422 

686, 

095 
261 
682 
692 
124 


r.  Waterford  &  L.  Railw. 

r.  YV.  Midland  R. 

r.  \\  ilson 

r.  \\  ing 

v.   Woreesfo  rshire    &    Staf- 

ford  Railw.  690 

o.  York,  N.  &  B.  R.  682 

:  .  5  ork  &  N..M.  Railw.  375,  503, 

675,  683,  685 

Reitenbaugh    p.    Chester    Valley 

Railw.  255,  280,  281,  282 

si  laer  iV   Sar.  Railw.,  matter 
of  506,  508 

Rensselaer  &   W.  PL  Rd.  Co.  v. 

Barton 
Renthrop  p.  Bang 
Renwick  v.  N.  York  Cen.  Railw 
Reuter  p.  Electric  Telegraph  Co 

e  p.  Boston  Copper  Co. 
Rex  p.  Allgood 
r.  Amery 

p.  Archbishop  of  C. 
p.  Bagsbaw 
p.  Hank  of  England 
p.  Barker 

r.  Bishop  of  Chester 
r.  Bishop  of  Ely 
p.  Bishop  nf  London 
p.  I  '■  ■ 
r.  ( lambridge 


178 

268 

571 

629 

79,  207 

689 

76 

657,  679 

:;77 

679,  688 

657,671 

658 

679,  690 

658 

690,  702 

690 

p.  Churchwardens  of  Taunton  660 

P.  (lark.-  705 

ii  St.  Aldwins  91 

in.  of  C.  Enclosure        692 

p.  <  iommissioners    of    Nene 

Outfall  358 

v.  Doncaster  84 

iversham  83 

p.  Fell  697 

p.  Guardians  of  Thame  660 

o.  Hertford  690 

p.  1 1  ghmore  702 

p.  Ho  tman  of  Newcastle-upon- 

Tj ne  689 

r.  Hungerford    Market     361,   687 
v.  Inhabitants  of  Kent  42  1 

p.  Inhabitants  of  Lindsay         424 
r.  Justices  of  Kent  698 

ticea  of  W.  1!.  of  York, 
in  matter  of  Railw.  697 


Rex  r.  fCerrison  12  i 

v.  Kingston  660 

p.  Kirke  662 

p.  Lincoln's  inn  690 

v.  Liverpool    &     .Manchester 

Railw.  361 

v.  London  Assurance  Co.  689 

v.  Marquis  of  Stafford  687 

p.Martin  73 

v.  May  83 

v.  Mayor  of  Colchester  690 

v.  Mayor  of  Liverpool  377 

p.  M'Kay  702 

v.  Medley  539 

v.  Merchant  Tailors'  Co.  689 

v.  Montacute  660 

v.  Morris  425 

v.  M.itt  137 

v.  Mousley  702 

v.  Nottingham     Old     Water 

Works  393,  679 

v.  Quae  Bank  Com.  683 

v.  St.  Catherine's  Hall  690 

v.  Saunders  697 

v.  Severn  &  Wye  Railw.        3,  694 
v.  Shelley  689 

v.  Sir  William  Lowther  702 

v.  Stainforth  &  Keadby  Ca- 
nal ( 'o.  692 
v.  Tappenden  661 
V.  Thatcher                                   690 
v.  Tregony  690 
v.  Truro                                       703 
v.  Trustees  of  Norwich  Roads    377 
v.  Trustees  of  Swansea  Har- 
bor                                       685 
v.  Turkey  Co.                              690 
v.  Tyrrell                                       705 
v.  Vice-Ch.  of  Cambridge  76 
v.  Wallis                                    705 
v.  Williams                         690,  702 
v.  Worcester  Canal  Co.     156,  161 
v.  Wright                             422,  424 
Rexford  v.  Knight             270,  280,  299 
Reynolds  v.  Dunkirk  &  State  Line 

Railw.  242 

Rice  v.  Courtis  167 

v.  Dublin  &  Wicklow  Railw.    415 

v.  Turnpike  Co.  279 

Rich  v.  Basterfield  529 

Richards    v.    Sacramento   Valley 

Railw.  "    508 

v.    Scarborough    Public 

Market  Co.  409 

Richardson,  ex  parte  17 

v.  Merrill  162 

v.  N.  Y.  Cent.  Railw.  570 
v.  Hailw.  Co.  223 

t;.  Southeastern  Railw.  387 


TABLE    OF    CASES. 


lxxxix 


Richardson  v.  Vermont   Central 

Railw.  310,  :U7 

Richmond  v.  N.  London  R.  :!71 

Richmond  &  Petersburg  Railw.  v. 

Mrs.  Jones  491 

Richmond  v.  Sacramento  Valley 

Railw.  499 

Richmond  Railw.  v.  Louisa  Railw.  273 
Richer  v.  Fairbanks  436 

Rickett  v.  Met.  Railw.  Co.      354,  357, 

360 
Ricketts  v.  E.  &W.  I.  Docks  &  B. 
i        J.  Railw.  487,  519 

Ridley  v.  Plymouth  Banking  Co.    585, 

601 
Rioter's  case  658 

Ripley  v.  Sampson  175 

River  Dunn  Nav.  Co.  v.  N.  Mid- 
land Railw.  208 
Robbins,  ex  parte                                686 
v.  Milwaukee  &  Horicon 

Railw.  279,  363 

v.  The  Bury  Improvement 

Commissioners  437 

Roberts  v.  Button  595,  596 

v.  Great  Western  Railw.     512 

v.  Ohio  &  Mobile  Railw.     193 

v.  Price  89 

v.  Read  575 

v.  Smith  550 

Robertson  v.  Knapp  289 

Robinson  v.  Chartered  Bank  125 

v.  Nesbitt  184 

v.  New   York   &   Erie 

Railw.  •  312 

v.  Supervisors  696 

Robson,  in  re  697 

Rochester  &  Syracuse  Railw.  v. 

Budlong  278,  288,  292,  294 

Roch.  White  Lead  Co.  v.   Roch- 
ester 346 
Roe  v.  Birkenhead,  Lancashire,  & 

Cheshire  Junction  Railw.  110 

Rogers,  ex  parte  78,661 

v.  Bradshaw  273,  297,  298,  315 

v.  Huntingdon  Bank  125 

v.  Kennebec   &  Portland 

Railw.  311,  335 

v.  Newburyport  Railw.  511,  523 

Romaine  v.  Kinshimer  697 

Roman  v.  Fry  119,  125 

Rood  v.  New  York  &  Erie  Railw.    476 

Rose  v.  Truax  607 

Rosenthal  v.  Madison  PL  Rd.  Co.      66 

Rosevelt  v.  Brown  148,  168 

Ross  v.  Adams  363 

v.  Boston  &  Worcester  Railw.  480 

v.  Elizabethtown   &  Somer- 

ville  Railw.       285,  288,  296 


Ross  v.  Lafayette  &  Ind.  Railw.       192 
v.  Madison  536 

Rouch  v.  Great  Western  Railw.       442 
Rounds  v.  Mumford  :!17 

Rowe  v.  Shilson  425 

Roxbury  v.  Boston  &Prov.  Railw.  242, 

243 
Royal  British  Bank,  in  re        153,  224, 

591,  592 
v.  Turquand     602, 
603 
Royal  Exchange  Insurance  ( !o.  v. 

Moore  1 36 

Rubottom  v.  McClure  299 

Ruck  v.  Williams  635 

Rundlc  v.  Delaware  &Raritan  Ca- 
nal Co.  58 
Runyan  v.  Lessee  of  Coster  63 
Russell  v.  Hudson  River  Railw.  548 
Rust  v.  Low  267,  518 
Rut.  &  Bur.  Railw.  v.  Procter  586 
Ryan  v.  Cumberland  Valley  Railw.  544, 

555 
v.  New  Y.  Central  Railw.       482 
Ryder  v.  Alton  &  Sangamon  Railw. 

176,  194 


s. 


S.  F.  &c.  &  S.  Railw.  v.  Caldwell  278 
S.  T.  &  A.  Railw.  in  re  360 

Sabin  v.  Bank  of  Woodstock  166 

v.  Vermont  Central  Railw.  303, 
404 
Sacramento  Railw.  v.  Moffatt  363,  504 
Sadd  v.  Maldon,  W.  &  Br.  Railw.  376, 

408 
Saflfbrd  v.  B.  &  M.  Railw.  483 

Sagory  v.  Dubois  176 

St.  George  v.  Reddington  400 

St.  James'  Club,  in  re  15 

St.  John  v.  Eastern  Railw.  541 

v.  St.  John  48 

St.  Louis,  Alton  &  Terre  Haute 

Railw.  v.  South  114 

St.  Louis  &  C  Railw.  v.  Dalby  114 
St.  Louis  C.  Ct.  v.  Sparks  691 

St.  Luke's  Church  v.  Slack  691 

St.  Mary's  Church  in  the  City  of 

Philadelphia  66,78 

St.  Thomas   Hospital   v.    Charing 

Cross  Railw.  370 

Salem  v.  Eastern  Railw.  623 

Salem  Mill-Dam  Co.  v.  Ropes   17,  118, 

175,  189 
Salem  &  So.  Danvers  Railw.  v. 

County  Comm.  700 

Salomons  v.  Laine  33,  585,  588 


xc 


TABLE    OF    CASES. 


Samp  !;  iwdoinhana  Steam- 

Mill  •  ss 

Lewis  '•ll) 

-  ol  -s' ■  Neot  -; 
Union  62; 

Sand<  »utb  &  Wash- 

tail  w .  ( " 

-  indera  1  59,  160 

Sir-,  in  o.  Franklin  [ns.  Co.  124,  125, 

126,  156 
v.  Webster  91 

-      r  r.  B.  &  Mi.  PI.  Railw.  278 

lers,  ex  pa  157 

S     in  r.  I  Make  Railw.  18 

Savings  Bank  v.  Davis  84 

Northfield  562 

r.  But.   &  Bur.    Railw.      618, 
632 
Saxbv  v.  M.  S.,  &c.  Railw.  345 

s  r.  Blane  133,  168 

Sayre  v.  Louisville  Union  Benevo- 
lent Association  95 
o.  North  W.  Turnpike  Co.      60 
Scadding  v.  Lorant  85 
rs  o.  Bait.  &  Wash.  Railw.     486, 

603 

Schmidt  v.  M.  &  St.  Paul  Railw.     515 

School  1  ;<>anl  v.  People  695 

iol     Directors     of    Bedford 

i;  ii  ough  r .  A:  d<  rson  689 

er  '•.  Northern  L.  Railw.  271 

meier    v.   St.    Paul   cc    i'. 

Iw.  281 

I    i      .  Thoburn  278 

Schwartz  v.  Hudson  K.  Railw.  578 

\\ei-v  454,  155 

l  lark  Till 

r.  <  orp  •  ation  of  Liverpool    437 

r.  Eagle  Fire  Co.  87 

/•.  Lord  Ebury  12 

v.  London  Dock  Co.  46  1 

v.  Morgan  660 

•akely  51 

<■.  W.  &R.  Railw.  486,  494 

-     ttiafa    Northeastern    Railw.    v. 

v  m  39,  51,  645,  674 

518,  550,  555 

Soci- 

Inatter  of  183 

le  v.  Lackawanna  Railw.  309 

v.  Boston  &  Maine  R.  5; 

1     nnell  152 

&  Tenn.  K.  v.  Tipton      72,  176, 

201,  215 

or  of  <  !olumbus        608 

!•■  p.  London  &  Birmingham 

Railw.  263 

i  B  .ii"-.  v.  A  iburn  &  Roch. 

Iw.  310,315,318 


Senior  v.  Met.  Railw.  360 

Serandat  t>.  Suisse  531 

Sen-ell    r.    Derbyshire,    Staff.    & 

Wor.  J.  Railw. 
Sewall  v.  Boston  Water  Power 

Sewell  V.  Lancaster  Bank 
Seymour  V.  Maddux 
v.  Sturgess 
Sbamokin  Valley  Railw.  v.  Liver- 
more 
Sband  v.  1  Lenderson 
Sharp  r.  Great  Western  Railw. 
Sharrod  v.  London  &N.  W.  Railw. 

486,  536 
Shattuck  v.  Stoneham  B.  Railw.  289 
Schauck  V.  Northern  Central  R.  545 
Shaw    v.   Boston    &    Worcester 

568,  576 

142,  143,  144 

142 


598 
165 
117 
546,  .r,;-,a 
175 


266 
351 

457 


Railw. 
v.  Fisher 

v.  Holland 

v.  Perkins  660 

v.  Rowley  133 

v.  Spencer  165 

Shears  v   Jacobs  500 

sin  ild  v.  Troy  &  Boston  Railw.        1U9 

Sheffield,    A.    &   M.    Railw.    v. 

Woodcock  •  8,  11,  92,  127,  194 
Sheldon  r.  Hudson  River  Railw.  476 
Shepherd  v.  Buffalo,  N.  Y.  &  Erie 

Railw.  492 

Shepardson  v.  M.  &  B.  Railw.  300 

Sherman  v.  Mayor  of  New  York      438 
v.  New    York    Central 

Railw. 
v.  Roch.  &  Sy.  Railw 


63 
536, 
544 

v.  Vermont  Central  Railw.  431 
Shipley  v.  Mechanics'  Bank  679 

Shirley  v.  Ferrers  20,  48 

Shoemaker    v.    Goshen    Turnpike 

Co.  221 

Shoenbergcr  v.  Mulhollan         288,  379 
Shortridge  v.  Bosanquet  123 

Shrewsbury  &  Birmingham  Railw. 

v.  London  &  Northwestern  R.        37," 
017,  621,  630,  041,  645 
v.  London   &   N.  W.  &   Shrop- 
shire Union  Railw.  017 
Shrunk  v.  Schuylkill  Nav.  Co.  248,  317 
Shurtz  v.  S.  &T.  Railw.               71,  72 
Sigfried  v.  Levan  135 
Silk  Manuf.  Co.  v.  Campbell            700 
Sills  v.  Brown                                         581 
Simpson  v.  Dcnison           465,  610,  642 
v.  Lancaster    &    Carlisle 

Railw.  376 

v.  Lord  Howden  25,  37 

v.  Scottish  U.  Fire  &  Life 

Ins.  Co.  658 


TABLE   OP   CASES. 


XCl 


Simpson  v.  So.  Staff.  Waterworks 

Co.  251 

v.  Westminster   Palace 

Hotel  Co.  610 

Sims  v.  Commercial  Railw.  'M.r> 

Sinclair  v.  Pearson  536 

Sixth  Avenue  Railw.  v.  Kerr  326 

Skerratt   v.    North    Staffordshire 

Railw.  503 

Skip  v.  Eastern  Counties  Railw.      544, 

547,  ;>:>;> 
Slater,  ex  parte  169 

v.  Emerson  429 

Slaymaker  v.  Gettysburg  Bank  121 

Sleath  v.  Wilson  "  536 

Small  v.  Herkimer  M.  &  H.  Co.       177 
Smart  v.  Guardians    of  the    Poor 

of  Westham  Union         626 
v.  Railway  300 

Smith  &  Co.  in  re  130 

Smith  v.  Allison  411 

v.  Birmingham  Gas  Com- 
pany 537 
v.  Boston  316,  678 
v.  Boston  &  M.  Railw.  272 
w.  Commonwealth  661 
v.  Crooker  135 
v.  Eastern  Railw.  488 
v.  Erb  660 
v.  Great  Eastern  Railw.  542 
v.  Helmer  300 
o.  Hull  Glass  Co.  602 
v.  Ind.  &  111.  Railw.  192 
v.  Law  85 
v.  London  &  St.  Katherine's 

D.  Co.  634 

v.  London  &  S.  W.  Railw.     483 
v.  Maryland  337 

v.  McAdams  800 

v.  New   York     &    Harlem 

Railw.  546,  632 

v.  Pelah  474 

v.  Reese  River  Silver  Min- 
ing Co.  151 
Smyth,  ex  parte  702 
v.  Darley  89 
Snodgrass  v.  Gavit  ,  455 
Snow  v.  Housatonic  Railw.  545 
Snowden  v.  Davis  466 
Snyder  ».  Penn.  Railw.  305 
Society  of  Practical  Knowledge  v. 

Abbott  119 

Solomons  v.  Lang  155 

Somerset  Canal  Company  v.  Har- 

court  366 

Somerville  &  E.  Railw.  v.  Doughty  278, 

283 
Som.  &  Ken.  Railw.  v.  Gushing  191 
Soper  v.  Buffalo  &  Roch.  Kailw.       584 


South   Bay  Meadow  Dam  Co.  v. 

Gray  117,  177,  211 

South  Carolina  Railw.,  ex  parte        410 

v.  Blake       261, 

366,  410 

Southeastern  Railw.  v.  Brngden       442 

v.  European  &  Am.  Tel.  Co. 

421,  536 
v.  Queen  417 

South  Essex  Gas  Light    &    Coke 

Co.  in  re  610 

Southampton   Bridge   &  I.  Co.  V. 

Local  Board  of  Health  635 

Southmayd  v.  Russ  125 

South  Staffordshire  Railw.  v.  Burn- 
side  169 
v.  Hall     388 
S.  Wales  R.  Co.  v.  Richards     697,  699 
in  re  Richards     503 
South  Wales  Railw.,  ex  parte  383 
Southwestern  Kailw.  v.  Coward       387 
Southwick  v.  Estes  533 
South  worth  v.  Old  C.  Railw.  569 
South  Yorkshire  &  Goole   Railw. 

in  re  660 

South  Yorkshire  &  River  Dun  Co. 

v.  Great  Northern  Railw.      617,  646 
South  Yorkshire  Railw.   v.   Great 

Northern  Railw.  617 

Spackman,  ex  parte  157,  588 

v.  Evans  590 

vi,  Lattimore  17 

Sparks  v.  Liverpool  Waterworks      226 
Sparling  v.  Parker  120 

Sparrow   v.    Evansville    &    Craw- 

fordsville  Railw.        213 
v.  Oxford,  &c.  Railw.       251, 
368,  369,  374 
Spartanburgh   &  Union   Railw.   v. 

De  Graffenreid  213 

Spear  &  Carlton  v.  Newell  614 

Spear  v.  Crawford  176 

v.  Richardson  292 

Spering  v.  Smith  612 

Spooner  v.  McConnell  337 

Spottiswoods's  case  16 

Sjiringfield  v.  Conn.  River  Railw.   253, 
260,  273,  315 
Spry  v.  Emperor  466 

Squire  v.  Campbell  404 

Stacey  v.  Vt.  Central  Railw.     256,  801 
Stahl  v.  Berger  135 

Stainbank  v.  Fernley  150 

Stamps  v.   Bir.,  Wolv.,    &  Stour 

Valley  Railw.  376,  383 

Standish  v.  Mayor  of  Liverpool        382 
Stanhope's  Case  588 

Stanley  v.  Chester  &  Birkenhead 

Railw.  27 


mi 


TABLE  OP  CASES. 


St  inli  v  r.  Stanley  1  18 

S  .      -.in  215 

Staple i     i.    London,    V>-    &    So. 
ilw. 

600 
Starr  p.  Child 

I  ire  [ns.  Co.  648 

A.  P.  Hunton  &  others        708 
p.Ashley  691,702 

v.  B.  \  0.  Railw.  251 

.  ( loncord,  &  Mon- 
treal Railw.       94,  263,  651, 
691 
o.  Bank  of  Louisiana  _N~ 

■    idford  Village  705 

, .  Brown  701,  702 

o.  <  lamp  108 

r  &  Evesham  660 

( Commercial  Bank  of  Man- 

ster  703 

Common  <  iouncil  691 

Comm.  of  Mansfield  41 1 

Concord  ,\.  M.  Railw.  703 

( lounty  Judge  677 

Davenport  677 

on  77,302 

Digby  278 

Directors  of  Bank 
Franklin  Hank  121 

Garretson  302 

Goold  112 

am 
Great  Works  Mill  &  Man. 
Co.  537 

ford  &  X.  Haven  R.    675, 
676, 
Hastings  660 

Hessenkamp  326 

Holiday  679 

Hudson  699 

Jersey  City  696 

uk  677 

Lynch  691,  693 

.  McBride  7<>2 

.  Merchants1  Ins.  Co.  702 

.  Merry  702 

Miller 

-.  Railw.  701 

Essex  1!  lilw.        533 
Norwalk  &  Danbury  Turn- 
pike <  o. 

106, 
246, 


410 
rton  106,  108 

246,  27o 
114 
lis    1*.   M.   &   Life 

702 
Thom]  109 

'I'm  lor  85 

Turk  702 


State  v.  Vermont  Central  Railw.     535 
r.  Wheeling  Bridge  <  !o.  337 

v.  Wilmington     &     Manch. 

Railw.  622 

State  of  Maryland  r.  Baltimore  & 

Ohio  Railw.  571 

Stearns  c.  <>lii  Colony  cSc  Fall  River 

Railw.  511 

Stears  v.    S.  Essex  Gas  Light  & 

Cuke  Co.  611 

Stebbing   v.   The    Met.    Board   of 

Works  250 

Steel  v.  Southeastern  Railw.  332,  503, 

528 

604 

371 

47 

346,  530 

11 


Steele  v.  Harmer 

v.  Midland  Railw. 
v.  North  Met.  Raih 
v.  S.  Eastern  Rail. 
Steigenberger  v.  Carr 
Siein  r.  [nd.,  &c.  As-ociation 
Steinweg  v.  Erie  Railw. 
Stephens  v.  De  Medina 
Stetson  v.  Faxon 
Stevens  v.  P.  &  N.  Railw. 

v.   Rutland  &   Burlington 

Railw. 
v.  South   Devon   Railw. 

620,  652 

Stewart's  Estate,  in  re  234. 

Stewart  v.  Anglo-California   Gold 

Mining  Co. 

v.  (  auty 

v.  Hamilton  College 
v.  Raymond  Railw. 
Stikeman  v.  Dawson 
Stiles  v.  Western  Railw. 
Stilphin  v.  Smith 
Stockbridge  v.  West  Stockbridge 
Stockton   &   Darlington    Railw.   v. 

Brown  252,  408 

Stockton   &   Hartlepool  Railw.  v. 
Leeds    &    Thirsk    &    Clarence 
Railws. 
Stoddard  v.  Onondaga  Annual  Con- 
ference 
Stokes  v.  Grissell 

v.  Lebanon  &  Sparta  Turn- 
pike Co. 
Stone  u.  Cambridge 

v.  Commercial  Railw.    351,  368, 

375 

Stoneham  Branch  Railw.  v.  Gould  179, 

189 
Storey  v.  Ashton  536 

Stormfeltz  v.  Manor  Turnpike  Co.  253 
Straffon's  Executors,  <x  parte  123 

Strang  v.  Beloit  &  M.   Railw.       288, 

294 
Strasburg  Railw.  v.  Eehternacht         42 


69 
475 
138 
316 
341 

207 

82, 


227 
139,  141 

301,  379 

205 

431 

98 

3 


46 

73 
415 

177 
260 


TABLE    OF    CASES. 


XC111 


Stratford  &  M.  Railw.  v.  Stratton  189, 

192 
Straus  v.  Eagle  Ins.  Co.  196,  597 

Stray  v.  Russell  1 29 

Strong  v.  Ellsworth  12 

Strong,  Petitioner,  etc.  600 

Stubbs  v.  Lister  227 

Stubley  v.  London  &  X.  W.  Railw. 

577 
Stucke  v.  Milw.  &  Miss.  Railw.  5<  18 
Sturges  v.  Knapp  609 

Sturtevant  v.  Milw.,  Wab.,  &  B. 

Railw. .  351 

Sullivan     v.    Philadelphia     &    R. 

Railw.  507 

v.  Tuck  143 

Simburv  &  Erie  Railw.  v.  Hummel    307 

Susquehannah  Canal  Co.  v.  Wright  248 

Sutton  v.  Clark  317,  635 

v.  Louisville  280 

v.  Tatham  189 

Sutton  Harbor  Improvement  Co. 

v.  Hitchins  388 

Suydam  v.  Moore  487,  573 

Swan  v.  North  British  Australasian 

Co.  16 

Swansea  Harbor  Trustees,  in  re       399 
Swansea  Vale  Railw.  v.  Budd  229 

Swatara  Railw.  v.  Brune  203 

Sweeney  v.  Old  Colony  &  Newport 

Railw.  577 

Symonds   v.  City  of  Cincinnati      246, 

278 


Taff-Vale  Railw.  v.  Nixon  442 

Taggart  v.  West  Maryland  Railw.  119, 

188 
Talmadge  v.  Rensselaer  &  Saratoga 

Railw.  489 

Tanner  v.  Tanner  163 

Tar  River  Nav.  Co.  v.  Neal  176 

Tarbell  v.  Central  Pacific  Railw.         98 
Tarrant  v.  Webb  545,  555 

Tate  v.  Ohio  &  Miss.  Railw.  321 

Tattersall  v.  Groote  454 

Taunton  v.  Royal  Ins.  Co.  648 

Taunton  &  South  Boston  Turnpike 

Co.  v.  Whiting  175 

Tawney  v.  Lynn  &  Ely  Railw.  Co. 

376 
Tavler  v.  Great  Indian  Peninsula 

Railw.  158 

Taylor  v.  Chichester   &   Midhurst 

Railw.  _    40,  51,  209 

v.  City  of  St.  Louis  317 

v.  Clemson  249,  409 


Taylor  v.  County  Commissioners      286 
v.  Fletcher  196 

v.  Gay  698 

v.  Griswold  85 

v.  Hughes  124 

v.  Merchants'  Fire  Ins.  Co.  216 
v.  Railw.  Co.  576 

r.  Southeastern  Railw.  Co.    475 
v.  Stray  140 

v.  York  &   N.    M.  Railw., 

in  re  378 

Tebbutt  v.  B.  E.  Railw.  533 

Tempest©.  Kilner  120,  J  42 

Tenney  v.  East  Warren  Lumber  Co.  687 
Tenny  v.  Tuttle  581 

Terre  Haute,  &c.  Railw.  v.  Smith  515 
Terry  v.  New  York  Central  Railw.  488 
Tew  v.  Harris  398 

Thames  Haven  Dock  &  Railw.  Co. 

v.  Hall  88,  365 

v.  Rose  88,  90,  93 

Thames  Steamboat  Co.  v.  Housa- 

tonic  Railw.  537 

Thames  Tunnel  v.  Sheldon  193 

Thayer  v.  St.   Louis,  Alton,    &c. 

Railw.  516 

v.  Vermont  Central  Railw.  432 

Thicknesse  v.  Lancaster  Canal  Co.  391, 

687 

Thigpen  v.  Miss.  Central.  Railw.     187 

Thomas  v.  Winchester  633 

Thompson,  ex  parte  660 

v.  Charnock  454 

v.  Grand  Gulf  Railw.  Co. 

296,  301 
v.  New  Orleans  &  Car- 

rolton  Railw.  530 

v.  New    York     &     H. 

Railw.  253 

v.  Thompson  120 

v.  West  Somerset  Railw.  321 

Thorne  v.  Taw  Vale  Railw.  3 

Thorpe  v.  Hughes  200 

v.  Rut.  &  Bur.  Railw.    58,  274 

Thurnell  v.  Balbirnie  454 

Tilleard,  in  re  51 

Tillet  v.  Cbaring-Cross  Company   240, 

243 
Tillotson  v.  Hudson  River  Railw.  347 
Tilson  o.  Warwick  Gas  Light  Co.  688 
Timmons  v.  Central  Ohio  Railw.  551 
Tinsman  v.   Belvidere    Delaware 

Railw.  311 

Tippets  v.  Walker  12D 

Titcomb  v.  Fitchburg  Railw.  425 

Tobin  v.  P.  S.  &  P.  Railw.  633 

Todd  v.  Taft  143 

Toledo  Bank  v.  Bond  60,  253 

Toledo  Railw.  v.  Wickery  486 


TABLE    OF    CASES. 


I       ...      ::  lilw.  r.  Fowler  516 

Toledo,  P.&  W.  Railw.  r.  Arnold     501 

r.  Pinder     483 

,-.  Rumbold  193 

Toledo  &  Wabash  Railw.  v.  Daniels516 

I    ledo  d.   1  bomaa  515,  521 

.,  \V.  &  Western  Railw.  v. 

Harmon  579 

r.  Rodrigues  542 

Tombs  r.  Rochester  &  Syracuse 

w.  510 

Tomlinson  v.  Man.  &  Birm.  Railw.  251 
romlinson  120 

Tonawanda  Railw.  v.  Munger  488,  520 
Tooke,  '.'■  j  159 

1  r.     London,   Br.    &    So. 

1       si  Railw.  633 

Torrington  i>.  Lowe  137 

Touehe  v.  Met.  R   W.  Co.  45 

Tower  v.  Prov.  &  Wor.  Railw.         521 
Prov.  &  I '  t  i <  ■ ; i  Railw.        488 
Towle  r.  The  State  679 

Towns  v.  Cheshire  Railw.         486,  519 
Townsend  v.  Ash  120 

Townshend  v.  Susquehannah  T.  Co.  634 
Tracy  v.  Troy  &  Boston  R.  493 

r.  Fates  201 

Trask  o.  Hartford  &  New  H.  Rail.  482 
Tremain  o.  Cohoes  Company  303 

Trenton    Water     Power    Co.    v. 

Chambers  284 

Troupe,  in  re  647 

Trow  v.  Vermont  Central  Railw.    491, 

572 

Troy  >•.  Cheshire  Railw.  315,  350 

Troy  >S:  Boston  Railw.  v.  Lee   278,  283 

v.  Northern  Turnpike  Co.  283, 

288,  295,  310 

v.  Potter  264 

r.  Tibbitts  176,  202,  215,  216 

o.  Warren  215 

Troy  &  ( rreenfield  Railw.  v.  Newton  190 

Troy  &  Rutland  Railw.  v.  Kerr       176, 

202,  617 
Troy  T.  Co.  v.  McChesney  176 

1  .    .  Loder  140 

Truate  695 

of  Presbyt.  Society  of 
Waterloo  P.  Auburn  &  Roch. 
Railw.  58,  314 

Tuckahoe  Canal  Co.  v.  Tuckahoe 
Railw.  253 

Tucker  r .  S  Lid  Society  67 

Tunnej  p.  Midland  Railw.  Co.        552 
Tuohey  v.  G  i  W.  Railw.      354 

Turner  v.  Sheffield  &  R.  Railw.      303, 

351 

Turnpike  Co.  V.  Hosmer  410 

r.  Railw.  Co.  177 


Turnpike  Co.  v.  Wallace 
Turnpike  Road  v.  Brosi 
Turquand  v.  Marshall 
Tyrrell  r.  Woolley 


U. 


59 
363 
596 
595 


Dnangst's  Appeal  233 

Underbill  v.  New  York  &  Harlem 

Railw.  494 

v.  Saratoga     &    Wash. 

Railw.  237 

Underwood  v.  Bedford     &    Cam- 
bridge Railw.        369 
v.  Hart     '  431 

Union  Bank  v.  Knapp  228 

v.  Laird  125 

Union  Bank  of  Tennessee  v.  State  121 
Union  Locks  &  Canal  Co.  v.  Towne  206 
Uniontown  v.  Commonwealth  677 

U.  S.  v.  Arredondo  253 

v.  Harris  265,  270 

v.  New  Bedford  Bridge  Co.  337 
v.  Railw.  Bridge  Co.  247,  343 
v.  Robeson  455 

v.  Vaughan  125 

United  States  Bank  v.  Dandridge  430 
Unity  Ins.  Co.  v.  Cram  74 

Unthank  v.  Henry  County  Turnp. 

Co.  179 

Upfill's  case  15,  173 

Upton  v.   South  Reading  Branch 

Railw.  277,  289 

Utica    &    Schenectady   Railw.    v. 

Brinkerholf  185,  216 

Utica  Bank  v.  Ilillard  228 

Utica  Railw.,  matter  of  278 


V. 


Vail  v.  Morris  &  Essex  Railw.  285,  287, 

295 
536 
573 


Vanderbilt  v.  Richmond  T.  Co. 
Vardergrift  v.  Rediker      490,  520, 
Vanderkar  v.  Rensselaer   &   Sar. 

Railw.  504,  520 

Vanderwerker  v.  Vermont  Central 

Railw.  432 

Vanegril't  v.  Railway  538 

Van  Wickle  v.  C.  &  A.  Railw.  698 

w.  Railw.        256,  285,  294 
Varick  v.  Edwards  145 

Varillat  v.  N.  O.  &  Car.  Railw.       576 
Varrick  v.  Smith  246 

Vaughn  v.  Co.  of  Gunmakers  669 

Vaughan  v.  Taff-Vale  Railw.  475 


TABLE    OF    CASES. 


xcv 


Vauxliall  Bridge  case  48 

Yauxhall  Bridge  Co.  v.   Earl   of 

Spencer  19,  24 

Vawter  v.  Ohio  &  Miss.  Railw.  Co.  206 

Veazie  v.  Mayo  239,  323 

v.  Penobscot  Railw.       324,  419 

Vermont  Central  Railw.  v.  Baxter  259, 

263,  618 

v.  Burlington       411 

v.  Clayes  215 

v.  Hills  237 

Vermont  &  Canada  Railw.  v.  Vt. 

Central-  Railw.  251 

Vermont  &  Mass.  Railw.  v.  Fitch- 
burg  Railw.  636 
Vicksburg  &  Jackson   Railw.    v. 

Patton  490 

Vicksburg,   Shreveport,   &  Texas 

Railw.  v.  McKean  168,  186,  200,  203 
Victory  v.  Fitzpatrick  350 

Vilas  v.  Milw.  &  Miss.  Railw.  239,  352 
Vinal  o.  Dorchester  562 

Violet  v.  Simpson  575 

Visebe.r  v.  Hudson  River  Railw.       385 
Von  Schmidt  v.  Huntington  80 

Vose  v.  Grant  182 


w. 

W.  &  L.  Railw.  v.  Kearney  425 

W.  N.  W.  Co.  v.  Hawksford  17 

W.  &  P.  Railw.  Co.  v.  Washington  294 
W.  &  R.  Railw.  v.  Stauffer  477 

W.  W.  V.  Railw.  v.  Quick  486 

Wadhams  v.  Lackawanna  &  Blooms. 

Railw.  Co.  .  300 

Wainwright  v.  Ramsden  362 

Waitman,  ex  parte  162 

Wakefield  v.  Conn.  &  Pass.  Rivers 

Railw.  568 

Waldo   v.  Chicago,    St.   Paul,    & 

Fond  du  Lac  Railw.    250 
V.  Martin  606 

Waldron    v.    Portland    S.    &   P. 

Railw.  488 

v.    Rensselaer   &    Sar. 

Railw.  487 

Walker's  case  125,  162,  611 

Walker  v.  Bartlett  134.  146,  148 

v.  Boiling  550 

v.  Boston  &  Maine  Railw.  248, 

283,  286,  339 

v.  Devereaux  72,  171 

v.  Eastern  Counties  Railw.  239 

v.  Great  Western  Railw.      542 

v.  London  &  BI.  R.     375,  677 

v.  Milne  120 

v.  Mobile  &  Ohio  Railw.      187 


Walker  V.  Old  Colony  &  Newport 

Railw.  278,  307 

V.   South    Eastern    Railw. 

Co.  Ill 

v.  Ware  Railw.  257 

Wallingford  Manufacturing  Co.  v. 

Fox  12 

Walstab  v.  Spottiswoode  14 

Walter  v.  Belding  661 

Wanless  v.  The  North  Eastern  R.   578 

Wansbeck  Railw.  in  re  427 

Warburton  v.  Great  Western  R.      557 

Ward  v.  Griswoldville  Manuf.  Co.  176 

it.  Londesborough  14 

v.  Lowndes  664,  677,  682 

v.  Southeastern  Railw.  130 

Ware   v.   Grand  Junction   Water 

Works  80,  207 

v.  Regents'  Canal  Co.  306,  358, 

398 

Waring  w.  Manch.,  Sheffield,  &  L. 

Railw.  442 

Warner  v.  Callender  '211 

v.  Erie  Railw.  545 

v.  Mower  84 

v.  N.  Y.  Cent.  R.  578 

Warren  v.  Fitchburg  Railw.  569 

v.  State  324 

Warren  Railw.  Co.  v.  State  419 

Warring  v.  Williams  135 

Wash.   &  Bait.    T.   Road  Co.  v. 

State  706 

Waterbury  v.  Hartford,  Prov.  &  F. 

Railw.  680 

Waterford,  Wexford,  &  W.  Railw. 
v.  Dalbiac  189 

v.  Pidcock  198 

Waterman  v.  Conn.  &  Pass.  River 

Railw.  312,  359 

Water   Power  Co.  v.  Chambers  236, 

242 
Waterman   v.    Trov  &   Greenfield 

Railw.  220 

Waters  v.  Moss  499 

v.  Quimby  541 

Watkins  v.  Great  Northern  Railw.  260, 

349,  351 
Watson  v.  N.  Y.  Cent.  Railw.         286 
v.  Reid  241 

Watts  v.  Porter  184 

v.  Salter  14,  15 

v.  Watts  146 

Webb  v.    Direct  London  &  Ports- 
mouth Railw.  28,  29,37, 
40,  41,  42 
v.  Man.  &   Leeds   Railw.    251, 
259,  376,  581 
v.  P.  &  K.  Railw.  569 

Webber  v.  Eastern  Railw.  290 


XCV1 


TABLE    OP   TASKS. 


Erie  &  Mad  River 
lw.  220 

Penn.  Railw.  5  15 

ecb  56  l 

Weld  i   &  Southwestern 

■..  Co.        11,  873,  413 
Lailw.  i?.  Berrie  180 

120 
.  [Iowell  519 

a.  a.-  Ken.  Railw.  < 
Wesli  jpaper  Association, 

S.  &  W.  Dire  595 

.  II.  L.  V.  &  T.  II.  Railw.   631 
\\  .      I       -;.r  Railw.  v.  Miles  1 15 

West  Cornwall  R.  v.  Mowatt  168 

1  'M  Railw.  v.  London  & 
N.  W.  Railw.  637 

West    Philadelphia   Canal   Co.   v. 
[lines  195,  197 

River  Bridget*.  Dix       272.  273, 
275,  276 
Western  Maryland  Railw.  v.  Ow- 
ings  351 

em  Penn.  Railw.  ( !ompany  v. 

Hill  356 

□  Railw.  v.  Babcock  241 

m  p.  Bennett  430 

o.  Poster  268 

Wesi  130 

lomon  137 

ry  318 

We}  nit  v.  N.  V.  &  Harlem  Railw.  550 

Whaalan   v.   M.   R.   &   Lake  Erie 

Railw.  548,  555 

Wheeler  v.  Roch.   &   Sv.  Railw.  268, 

16,  505 

Wheelo  I.  v.  Moulton  13,  121 

r.  Young  &  Pratt  259 

Whipple  v.  Walpole  291 

Whiteomb    v.     Vermont    Central 

Railw.  234,  311 

White's  <'ase  669 

.  &  Prov.  Railw.      350 

r.  Brown  479 

barlotte  &  S.  C.  Railw.  277 

v.  Concord  Railw.  292,  506 

o.  Fitchburg  Rail. 

■   incy  425 

p.  S   Shore  Railw.  307 

v.  Vt.  &  Mass.  Railw.  135 

White   Mountain   Railw.  v.  East- 
man 91,  172.  177,  190 
White  Ri                  .  p.  Vt.  Cent. 

lw.  272,  27:5,  315 

Mitheastern  Railw. 

0,  595 
Whitehouse      v.     Androscoggin 

Railw.    303,  304 
r.    Fellows  C;J5 


Whiteman     v.    Wilm.     &     Susq. 

Railw.  534 

White  River  Bank  691 

Whitfield  v.  Zellnor  428 

Whitman    v.     Boston     &     Maine 

Railw.  235,  239,  280,  287 

Whitney  v.  At.  &  St.  L.  Railw        509 
Whittaker    v.    Boston    &    Maine 

Railw.  570 

Whittier  v.  Ken.  &  Portland  R.       311 
Whitmarsh  Township  v.  PhiLGer. 

&  N.  Railw.  Co.  678 

Whitwell  v.  Warner  17,  583,  594 

\\  iggett  v.  Fox  cf  al.  550,  556 

Wiggin  v.  Free-Will  Baptist  So- 

ciety  83 

Wight  v.  Shelby  Railw.    172,  199,  202 
Wigmore  v.  Jay  544,  555 

Wilcox  v.  Rome  &  Watertown  R.  569 
Wiley  &  Moor  135 

Wilkins  v.  Roebuck  591 

Wilkinson  v.  Anglo-California  Gold 

Co.  .„  156 

v.  Lloyd  122,  127,  141 

Willard  v.  Newbury  561 

Willcocks,  ex  parte  86,  91 

Willey  v.  Southeastern  Railw.  383 

Williams  v.  Androscoggin  &  Ken- 
nebec Railw.  429 
v.  Archer  124 
v.  Bank  of  Michigan  61 
v.   Chester   &   Holvhead 

Railw.  430 

v.  Great  Western  Railw.  99 
v.  Hartford  &  New  Ha- 
ven Railw.  255 
V.  Jones  531,  686 
v.  Judge  of  County  Ct.  695 
v.  Michigan  Central  R.  488, 
490,  520 
v.  Natural  Bridge  Co.  316 
v.  New  Albany  A:  Salem 

Railw.  511 

v.  New     York    Central 

Railw.    240,    315,    316, 
318,  321,  507 
v.  Pigott  16 

v.  St.   George's  Harbor 

Co.  13,  46 

v.  South  Wales  Railw.      376 

v.  Wilcox  423 

Willing  v.  Baltimore  Railw.  294 

Wills  v.  Bridge  132,  134 

v.  Murray  84,  90 

Willyard  v.  Hamilton  299 

Wilmington  &  Manchester  Railw. 

v.  Saunders  76 

Wilmington  &  Raleigh  Railw.    v. 
Robeson  185 


TABLE  OP  CASES. 


XCV11 


Wilt.  &  Read.  Railw.  v.  Stauffer     278 
Wilmot  v.  Corporation  of  Coven- 
try 604 
Wilson  v.  iEtna  Insurance  Co.         454 
v.  Anderson  3 
v.  Blackbird  Creek  Marsh 


Co. 

v.  Cunningham 
v.  Goodman 
v.  Keating 
v.  Merry 
v.  Miers 
v.  Railw.  Co. 


337,  340 
3,  575 
597 
170 
547 
596 
492 


v.   West  Hartlepool  Har- 
bor &  Railw.  Co.  593,  630 


Win 


v.  Wilson 

o.  York  &  Md.  Railw. 
&  St.  Peters  R.  v.  Denman 


93 

438 
279, 
282 
280 


v.  Waldron 
Winch   v.    Birkenhead,   L.    &   C. 

Railw.  620 

Winter  v.  Muscogee  Railw.      207,  209 
Winterbottoin  v.  Wright  632 

Witmer  v.  Schlatter  17 

Witter  v.  Miss.  O.  &  R.  Railw.  Co.  411 
Wolfe  v.  Covington  &  Lexington 

Railw.  311,  315 

Wolverhampton   N.    W.    Co.    v. 


Hawksfor 

Wonder  v.  Bait.  &  Ohio  Railw. 
Wood  v.  Auburn  &  Roch.  Railw. 

v.  C.  &  C.  Railw. 

v.  Duke  of  Argyll 

v.  Dummer 

v.  Epsom  &  L.  Railw. 

v.  McCann 

v.  North  Staffordshire  R. 

v.  Stourbridge  Railw.  Co. 

v.  Vermont  Central  Railw 
Woodfin  v.  Insurance  Co. 
Woodfolk  v.  Nashv.  &  C.  Railw. 


173 
556 
590 
118 

11 
182 
375 
607 
425 
360 
461 

99 

279, 

280 

531 

657,  697 

135 


Woodman  v.  Joiner 
Woodstock  v.  Gallup 
Woolley  v.  Constant 

'  v.  North  London  Railw.     229 
Woolson  v.  Northern  Railw.  519 

Wootton's  Estate  363 

Worcester   &   Nashua    Railw.    v. 

Hiiuls  189 

Worcester  Turnpike  v.  Willard        175 


Works  v.  Junction  Railw.  343 

Wormwell  v.  Hailstone  687 

Worrall  v.  Judson  148 

Worsley  v.  South  Devon  Railw.       373 

Wright  v.  Coster  317 

v.  Fawcett  660 

v.  Gossett  512 

v.  Ind.  &c.  Railw.  521 

v.  N.  Y.  Central  Railw.     545, 

555,  556 

v.  Petrie  183 

v.  Scott  341 

v.  Warren  162 

v.  Wilcox  533 

Wyatt  v.  Great  Western  R.  Co.       565 

Wycombe   Railw.    v.   Donnington 

Hospital  242 

Wyman   v.    Lexington    &    West 

Cambridge  Railw.  289, 

398 

v.    Pen.   &  Ken.  Railw.    514 

Wynn  v.  Allard  572 

v.  Shropshire  Union  Railw. 

&  Canal  652 

Wynne  v.  Price  144,  148 

Wynstanley  v.  Lee  352 

Wyrley  Nav.  v.  Bradley  313 


Yarborough  v.  Bank  of  England  533 

Yates  v.  Milwaukie  337 

Yeizer,  case  of  307 

York  &  Cumberland  R.  v.  Pratt  189 

York  &  N.  Midland  R.  v.  Milner  685 

v.  Reg.  664, 

674 

Young  v.  Harrison  299 

v.  N.  Y.  Central  Railw.  528 

v.  Yarmouth  562 


z. 


Zabriskie  v.  C.  C.  &  C.  Railw.         74, 
84,  584,  590 
v.  Jersey  City  &  Bergen 

Railw.  Co.  325 

Zack  v.  Penn.  Railw.  283 

Zimmerman  v.  Union  Canal  Co.      248, 

299,  317 


ANALYTICAL  INDEX  OF  APPENDIX  OF  LATER  CASES, 

REPORTED   WHILE   THE   WORK  WAS   IN  PRESS. 


CORPORATIONS. 

PAGE 

of  shares  on  stock  exchange,  custom,  usage 709 

bene  of  atock 709 

Misapplication  of  joint  stock 710 


EMINENT    DOMAIN. 

Constructive  power  to  take  private  property 710 

Compensation 711 

Designation  of  route  of  railway 711 

Surveys  of  the  line  and  notice  to  land-owner 711 

Taking  land  by  railway  company 711 

Lands  injuriously  affected 711 

Riparian  owners 712 

Railway  station 712 

Railway  crossing  highway 712 

Right  of  way  by  dedication 713 

Land  damages  do  not  pass  to  grantee 713 

Right  to  take  land  tor  national  use 713 


fires 713 

FENCES 713 

INJURY    TO    FELLOW-SERVANTS 715 

contracts  ultra  vires. 

Between  railways  as  to  future  legislation 715 

To  issue  preferred  stock 715 

Money  obtained  from  contract  ultra  vires       '.'.'.  716 

CONSTRUCTION. 

1 1  stance,  how  measured 71g 

............  716 

COMMON    CARRIERS. 

sibUity  for  acts  of  servants 71« 

Baggage,  what  is 717 


ANALYTICAL  INDEX  OF  LATER  CASES.  XC1X 

"When  carrier's  responsibility  attaches 717 

Damages  for  non-delivery  in  time 717 

Stoppage  in  transitu.     Consignor,  consignee       717 

COMMON    CARRIERS    OF    PASSENGERS. 

Regulations  as  to  passengers 717 

Using  unnecessary  force  in  expelling  from  cars 718 

Leaving  street  cars 718 

Evidence ;  declarations  of  servant ;  res  gestae 718 

MANDAMUS 718 


CONSTITUTIONAL     QUESTIONS. 

SECTION    V. 

Power  of  Congress  to  regulate  traffic  on  Interstate  Railways.    From 
whence  such  poioer  is  derived.     How  illustrated. 

ORIGINAL   PURPOSE    OF    THE    PROVISION. 

The  natural  import  and  construction  of  the  terms 720 

!Not  restricted  to  the  then  existing  modes  of  transportation 720 

Commerce  embraces  all  the  intercourse  among  nations  or  states  ;  the  means 

and  appliances  of  trade  and  communication,  in  all  its  parts  and  bearings  ; 

passengers  as  well  as  commodities 721-723 

The  railway  traffic,  extending  beyond  the  limits  of  one  state,  must  either  be 

no  part  of  the  commerce  of  the  country,  or  else  be  subject  to  the  control 

of  Congress.     If  not,  it  is  not  subject  to  any  supervision 723 

CONSIDERATION    OF    THE    DECISIONS. 

Review  of  the  decisions  of  the  national  courts  on  the  question.  The  regula- 
tion of  commerce  extends  to  all  waters  in  fact  navigable  for  boats  of  ten 
tons  burden  and  upwards.     Communicating  with  different  states  ....       723 

The  exceptions  from  the  powers  of  Congress  to  regulate  commerce     ....       724 

The  control  and  regulation,  by  Congress,  of  interstate  traffic  upon  railways 

seems  a  necessity 724 

It  argues  lameness  in  the  government  to  suppose  the  contrary 725 

CONGRESSIONAL    LEGISLATION. 

Comments  upon  the  legislation  of  Congress  and  the  opinions  of  federal  judges 

directly  upon  the  point 725 

Summary  of  the  results,  and  the  prospects  for  the  future 727 


TABLE  OF  CASES  OF  APPENDIX  OF  CASES. 


PAGE 

Agassiz  r.  Li  union  Tramway  718 

Baird  p.  Pettil  715 

I  lity  Railw.  r.  Sewell  709 

Beckett  p.  Met.  Railw.  712 

Bigelow  r.  \V.  W.  Railw.  711 

Bradley  p.  Ballard  716 

Bryant  p.  Rich  71/ 

Burt  v.  Merch.  Ins.  Co.  713 

Central  Railw.  p.  Mayor  of  Macon  715 
Chicago  &  X.  W.  Railw.  v.  Jack- 

715 
Chusan,  The  723 

City  of  Hannibal  v.  Hann.  St.  J. 

Railw.  710 

( !olcman  v.  X.  Y.  &  N.  II.  Railw.    718 
Comings    v.    Hann.  &  Cent.    Mo. 

Railw.  714 

Comstock  P.  De  Moines  V.  Railw.   714 
Connelly  p.  Warren  717 

Cooley  v.  Board  of  Works  72-1 

( Irocker  v.  <  Hd  South  Church  718 

Curtis  v.  Emery  712 


Dewey  v.  Chicago  &  N.  W.  Railw. 

Eaton  v.  B.  C.  &  M.  Railw. 
Ells  v.  Pacific  Railw. 


Foster  v.  Davenport 


714 

711 
714 

724 


Genesee  Chief  v.  EitzIIughes  724 

Gibbons  p.  Ogden     720,  721,  722,  723 

Giliiiau  r.  Philadelphia  724 

Gray  V.  Clinton  Bridge  725 

Halderman  v.  Beckwith  724 

Hazlehursl  O.  Savannah  Railw.  710 

Holden  p.  Rut.  &  i'».  Railw.  714 

Unit  p.  Gas  Light  &  Coke  Co.  712 

Iluddleston  v.  Lowell  Math.  Shop  715 

Jark-on  p.  Ch.  &  X.  W.  Railw.  713 
Jeff.    M.   &   Iinl.   Railw.  v.  Park- 

hiirat  714 


PAGE 

Jolly  v.  T.  II.  Draw  Bridge  Co.      724 

Lemraon  v.  Chic.  &  North  West. 
Railw.  714 

Maroney  v.  Old  C.  &  N.  Railw.  717 

Maxted  v.  Paine  709 

Mc(  larthy  v.  Met.  Bd.  Works  712 

McFadden  v.  Johnson  713 

Merry  v.  Nickalls  709 

Mohrw.  B.  &  A.  Railw.  717 

Monflet  v.  Cole  716 

Murphy  v.  Deane  718 

New  York  &  Boston  Railw.,  ex 
parte  711 

Nichols  v.  Middlesex  Railw.  718 

North  London  Railw.  v.  St.  Ma- 
rys •  713 

Norton  v.  Wallkill  V.  Railw.  711 

Passaic  Bridge,  The  723,  724 

Pennsylvania  v.  Wheeling  Bridge 

Co.  723 

Pickering  v.  Stephenson  710 

Pittsb.,  Ft.  Wayne  &  Ch.  Railw.  v. 

Maurer  713 


Rennie  v.  Morris 
Rickett  v.  Met.  Railw. 


709 
712 


Scott  v.  B.  &  N.  O.  Steamb.  Co.     717 
Shipley  v.  Fifty  Associates  716 

Silliman  v.  Hudson  River  Br.  Co.    723 

Tinney  v.  Bost.  &  Alb.  Railw.  715 

Tomlin  v.  Dubuque,  &c.  Railw.        712 
Trice  v.  Hann.  &  St.  J.  Railw.         714 

United  States  v.  Railroad  Br.  Co. 

723,  724 

Watts  v.  Boston  &  Lowell  Railw.     717 
Woodman  v.  Kilbourne  Man.  Co.    724 


Veazie  v.  Moor 


724 


THE    LAW    OF    RAILWAYS. 


*CHAPTER     I. 


INTRODUCTION. 


1.  Origin  of  railways  in  England. 

2.  First  built  upon  one's  own  land,   or   by 

special  license  from  the  owner. 

3.  Questions  in  regard  to  private  railways. 


4.  Railways  in  America,  public  grants. 

5.  Use  of  steam  power  on  railways. 

6.  The  franchise  of  a  railway  not  necessarily 

corporate,  nor  unassignable. 


§  1.  1.  Although  some  of  the  Roman  roads,  like  the  Appian 
Way,  were  a  somewhat  near  approach  to  the  modern  railway, 
being  formed  into  a  continuous  plane  surface,  by  means  of  blocks 
of  stone  fitted  closely  together,  yet  they  were,  in  the  principle  of 
construction  and  operation,  essentially  different  from  railways. 
The  idea  of  a  distinct  track,  for  the  wheels  of  carriages,  does  not 
seem  to  have  been  reduced  to  practice  until  late  in  the  seventeenth 
century.  In  1676,  some  account  is  given  of  the  transportation  of 
coals  near  Newcastle,  upon  the  river  Tyne,  upon  a  very  imperfect 
railway,  by  means  of  rude  carriages,  whose  wheels  ran  upon  some 
kind  of  rails  of  timber.1  About  one  hundred  years  afterwards,  an 
iron  railway  is  said  to  have  been  constructed  and  put  in  operation 
at  the  colliery  near  Sheffield.  From  this  time  they  were  put  into 
very  extensive  use,  for  conveying  coal,  stone,  and  other  like  sub- 
stances, short  distances,  in  order  to.  reach  navigable  waters,  and 

1  Roger  North's  Life  of  Lord  Keeper  North,  vol.  2,  p.  281 ;  Ency.  Americana, 
Art.  Railway,  vol.  10,  p.  478.  And  in  all  the  mediaeval  towns  in  Europe,  we 
notice  double  granite  flagging  along  the  streets,  for  the  wheels  of  carriages. 
And  in  the  main  street  in  Milan,  and  some  other  Italian  towns,  there  are  double 
tracks  of  this  kind  for  carriages  to  pass  in  opposite  directions.  These  granite 
blocks  in  the  streets,  for  the  wheels  of  carriages,  are  seen  in  Canterbury  and  in 
York.  England  ;  and  in  most  of  the  Italian  cities.  But  they  seem  never  to  have 
suggested  the  idea  of  railways. 

VOL.    I.  1  [*1] 


•J  INTRODUCTION.  CH.    I. 

BOmetimes  near   the  cities,  where  large  quantities  of  stone  were 
requisite  for  building  purposes. 

These  railways,  built  chiefly  by  the  owners  of  coal-mines 
and  stone-quarries,  either  upon  their  own  land  or  by  special 
license,  called  way-leave,  upon  the  land  of  others,  had  become 
numerous  long  before  the  application  of  steam  power  to  railway 
transportation. 

3.  Some  few  questions  in  regard  to  the  use  of  these  railways,  or 
tramways,  at  common  law,  have  arisen  in  the  English  courts.2 
But  as  no  such  railways  exist  in  this  country,  it  would  scarcely  be 
expected  we  should  here  more  than  allude  to  such  cases.3 

s  Walford  on  Railways,  2;  Hemingway  ».  Fernandes,  13  Simons,  228.  This 
Beema  to  establish  the  rule,  that  a  covenant  to  erect  a  railway  across  the 
land  of  another,  and  to  use  the  same  exclusively  for  a  given  transportation,  is 
binding  upon  the  assignees  of  the  interest.  But  a  mere  covenant  to  use  an 
adjoining  railway,  and  pay  a  specified  toll,  does  not  run  with  the  land  then  used 
by  the  covenanter,  and  from  which  he  derives  the  material  transported.  Kep- 
pellr.  Bailey,  2  My.  &  K.  517. 

'  Walford,  3-10.  The  points  chiefly  discussed  in  the  reported  cases  in  refer- 
ence to  private  railways  and  railways  at  common  law,  are :  — 

1.  That  these  way-leaves,  or  reservations,  by  which  one  man  has  the  right  to 
build  a  railway  upon  the  land  of  others,  or  in  the  rightful  occupation  of  others, 
arc  not  to  be  limited  to  the  kind  of  railway  in  use  at  the  date  of  the  reservation 
or  grant,  but  will  justify  the  building  of  a  railway,  suitable  and  convenient  for 
the  use  tor  which  the  reservation  or  grant  is  made,  and  with  all  such  needful  or 
useful  improvements,  as  the  progress  and  improvements  of  art  and  science  will 
enable  the  grantee  to  avail  himself  of.  Dand  v.  Kingscote,  2  Railw.  C.  27  ;  s.  c. 
6  -M.  &  W.  171.  Hence  it  was  considered  that  such  railways  might,  upon  the 
general  application  of  steam  power  to  railways,  adopt  that  as  an  improve- 
ment, coming  fairly  within  the  contemplated  use  of  their  grantor  reservation, 
although  wholly  unknown  at  the  date  of  their  grant.  Bishop  v.  North,  3  Railw. 
C.  459;  s.c.  11  M.  &W.  418. 

2.  That  this  will  not  justify  the  grantee  of  a  way-leave  for  a  railway,  for  a 
special  purpose,  to  erect  one  for  general  purposes  of  transporting  merchandise 
and  passengers.  Dand  v.  Kingscote,  2  Railw.  C.  27  ;  s.  c.  6  M.  &  W.  174.  Far- 
row v.  Vansittart,  I  Railw.  C.  602;  Durham  &  Sunderland  Railw.  et  als.  v. 
Walker,  3  Railw.  < '.  36  ;  s.  c.  2  Q.  B.  940.  In  this  last  case,  which  was  a  deci- 
sion ol  the  Exchequer  Chamber,  the  way-leave  Was  retained  by  the  landlord  in 
leasing  the  land,  and  the  court  say,  it  is  not  an  exception,  for  it  is  not  parcel  of 
the  thing  granted,  and  it  is  not  a  reservation,  as  it  did  not  issue  out  of  the  thing 

ted,  but  it  is  an  easement,  newly  created,  by  way  of  grant,  from  the  lessee. 

And  that  it  was  to  be  presumed  the  deed  was  executed  by  both  parties,  lessor 

Bui    it  was   held,   that  where,  by  a  canal  act   (32  Geo.  3,  c.  100, 

..  the  i  roprietore  of  coal-mines,  within  certain  parishes,  are  empowered  to 
make  railways  to  convey  coal  over  the  land  of  others,  by  paying  or  tendering 

[•2] 


§  1.  INTRODUCTION.  o 

*  4.  All  railways  and  other  similar  corporations  in  this  country 
exist,  or  are  presumed  to  have  originally  existed,  by  means 
of  an  express  grant  from  the  legislative  power  of  the  state  or 
sovereignty.4 

5.  The  first  use  of  locomotive  engines  upon  railways  for  pur- 
poses of  general  transportation  does  not  date  further  back  than 
October,  1829  ;  and  all  the  railways  in  this  country,  with  one  or 
two  exceptions,  have  been  built  since  that  date.5 

satisfaction,  that  this  power  was  not  limited  to  such  persons  as  were  the  proprie- 
tors, at  the  date  of  the  act,  but  extended  to  subsequent  proprietors.  Bishop  v. 
North,  3  Railw.  C.  459 ;  s.  c.  11  M.  &  W.  418. 

3.  That  if  the  railway  was  such  an  one  as  the  company,  at  the  time  when  it 
was  made,  might  lawfully  make,  for  the  purposes  for  which,  when  made,  they 
might  lawfully  use  it,  the  plaintiff,  as  reversioner,  had  no  ground  of  complaint, 
by  reason  of  the  intention  of  the  company  to  use  it  for  other  purposes,  for  which 
they  had  no  right  to  use  it,  until  such  intentions  were  actually  carried  into  effect. 
Durham  &  Sunderland  Railw.  v.  Walker,  3  Railw.  C.  36;  s.  c.  2  Q.  B.  940. 
But  where  other  parties  have  acquired  the  right  to  use  a  railway  originally 
erected  by  private  enterprise  and  for  private  purposes,  the  English  courts  at  an 
early  day  restrained  the  owners  of  the  railway  by  mandamus  from  taking  up 
their  track,  and  required  them  to  maintain  it  in  proper  condition  for  public  use. 
Rex  v.  Severn  &  Wye  Railw.,  2  B.  &  Aid.  646.  But  see  Thorne  v.  Taw  Vale 
R.,  13  Beavan,  10. 

4.  That  such  way-leaves,  for  the  erection  and  use  of  railways  upon  the  land 
of  others,  may  exist  by  exjiress  contract;  by  presumption  or  prescription;  from 
necessity,  as  accessory  to  other  grants;  and  by  acquiescence,  short  of  the  limit 
of  prescription.  Barnard  v.  Wallis,  2  Railw.  C.  162;  s.  c.  1  Cr.  &  Ph.  85  ;  Mon- 
mouthshire Canal  Co.  v.  Harford,  1  C.  M.  &  R.  614.  These  railways,  at  com- 
mon law  and  by  contract,  impose  certain  burdens  upon  the  proprietors,  as  the 
payment  of  rent  sometimes  for  the  use  of  the  land,  tenant's  damages,  and  the 
keeping  their  roads  in  repair,  so  as  not  to  do  damage  to  the  occupiers  of  the 
adjoining  lands.     Wilson  v.  Anderson,  1  Car.  &  K.  544 ;  Walford,  supra. 

4  2  Kent,  Comm.  276,  277;  Stockbridge  v.  West  Stockbridge,  12  Mass. 
400  ;  Hagerstown  Turnpike  Co.  v.  Creeger,  5  Har.  &  J.  122  ;  Greene  v.  Dennis, 
6  Conn.  292,  302,  Hosmer,  Ch.  J.  ;  Franklin  Bridge  Co.  v.  Wood,  14  Ga.  80. 
But  from  the  case  of  Wilson  v.  Cunningham,  3  Calilbrnia,  241,  it  seems  that  the 
municipal  authorities  of  San  Francisco  did  assume  to  grant  a  private  railway 
within  the  limits  of  the  city.  The  court  held  the  proprietor  liable  for  the  slight- 
est negligence  in  its  use,  whereby  third  parties  were  injured.     Post,  §  250. 

5  The  celebrated  trial  of  locomotive  engines  upon  the  Liverpool  and  Man- 
chester Railway,  for  the  purpose  of  determining  the  relative  advantage  of 
stationary  and  locomotive  power  upon  such  roads,  and  which  resulted  in  favor 
of  the  latter,  was  had  in  October,  1829.  The  Quincy  Railway,  for  the  trans- 
portation of  granite  solely,  by  horse  power,  was  constructed  about  two  years 
before  this.  But  the  Boston  and  Lowell  Railway,  one  of  the  tirst  railways  in  this 
country  for  general  transportation  of  passengers  and  merchandise  by  tin'  use  of 

[*3] 


•4  INTRODUCTION.  CH.    I. 

*  6.  There  is  nothing  in  the  prerogative  right  of  maintaining  and 
operating  a  railway  and  taking  tolls  thereon  which  is  necessarily 
of  a  corporate  character,  or  which  might  not,  with  perfect  pro- 
priety, belong  to,  or  he  exercised  by,  natural  persons,  or  which  in 
its  nature  may  not  he  regarded  as  assignable.6 

steam  power  and  locomotive  engines,  was  incorporated  in  June,  1830.  And  rail- 
ways tin-  purposes  of  general  traffic  were  constructed  about  the  same  date  in  most 
of  the  older  Btates,  and  very  soon  throughout  the  country. 

8  Bennett,  J.,  in  Bank  of  Middlebury  v.  Edgerton,  30  Vt.  182. 
[*4] 


PAUT   I. 

THE   LAW  OF   PRELIMINARY   ASSOCIATIONS. 


PART    I. 

THE   LAW  OF   PRELIMINARY   ASSOCIATIONS. 


CHAPTER     II. 


PUBLIC    RAILWAYS    AS    CORPORATIONS. 


PRELIMINARY    ASSOCIATIONS. 


SECTION    I. 


Mode  of  instituting  Raihvay  Projects. 


1.  Subscribers'  associatio?is  in  England. 

2.  Subscribers  bound  by  subsequent  charter. 

3.  Issue  and  registry  of  scrip  certificates. 

4.  Original  subscriber  liable  to   unregistered 

purchaser. 

5.  Holders  of  scrip  entitled  to  registry. 

6.  Preliminary  associations  not  common  in 

this  country. 


7.  Petitioners  for  incorporation  file  plans 

and  surveys. 

8.  Present  English  statutes. 

9.  Preliminary  Associations  may  be  regis- 

tered. 
10.  Not  now  held  responsible  as  partners  in 
England. 


§  2.  1.  The  mode  of  instituting  railway  enterprises,  in  England, 
is  more  formal  and  essentially  different,  from  that  adopted  in  most 
of  the  American  states.  There  the  promoters  usually  associate 
under  two  provisional  deeds,  the  one  called  a  "  Subscribers'  Agree- 
ment," and  the  other  a  "  Subscription,  or  Parliamentary  Contract," 
which  are  expected  only  to  serve  as  the  basis  of  a  temporary  organ- 
ization till  the  charter  is  obtained.  This  is  specifically  and  often 
in  detail  to  some  extent  provided  for,  in  the  subscribers'  agreement. 
A  board  of  provisional  directors  is  provided  to  carry  forward  the 
enterprise,  whose  powers  are  defined  in  the  subscribers'  agreement 
or  deed  of  association,  and  whose  acts  will  not  bind  the  members 
unless  strictly  within  the  powers  conferred  by  the  deed. 

2.  Under  this  form  of  association,  the  subscribers  are  bound  by 
the  act  obtained,  if  within  the  powers  conferred  by  the  deed,  even 
where  it  involves  the  purchase  of  canal,  and  other  property  by  the 
company.1     And  courts  of  equity  often  interfere  to  restrain  the 

1  Midland  Great  Western  Railway  v.  Gordon,  16  M.  &  W.  804. 

[*5] 


8  PRELIMINARY    ASSOCIATIONS.  PAET   I. 

provisional  directors  from  exceeding  their  powers  under  the  deed,2 
*or  misapplying  the  funds,  or  delaying  payment  of  the  dents  of 
the  association.8 

3.  The  provisional  directors  usually  issue  scrip  certificates, 
which  pass  from  hand  to  hand  hy  delivery  merely,  and,  after  the 
charter  is  obtained,  the  scripholders  are  registered  as  shareholders 
in  the  company,  and  thereby  become  entitled  to  all  the  rights,  and 
subject  to  all  the  liabilities  of  the  shareholders.4 

1.  And  if  the  original  subscriber  sell  the  scrip  to  one  who  omits 
t,.  have  his  name  registered  as  a  shareholder,  by  reason  of  which 
the  original  subscriber  canst;  his  name  to  be  registered  and  sell  the 
shares  again,  he  will  be  held  to  account  for  the  avails  of  the  second 
sale,  as  a  trustee  for  the  first  purchaser.5 

5.  But  the  company  arc  not  obliged  to  accept  of  the  holders  of 
scrip  as  shareholders,  in  discharge  of  the  original  subscribers,  it 
has  been  said,  but  may  insist  upon  registering  the  original  sub- 
scribers to  the  deed  of  association,  to  whose  aid  it  may  be  presumed 
the  promoters  looked  in  undertaking  the  enterprise,  which  by  their 
act  of  incorporation  they  are  morally,  and  in  some  cases  legally, 
bound  to  carry  forward.''  But  the  English  decisions,  upon  the 
whole,  hardly  seem  to   justify  this  proposition.      The  subscriber 

•  .1  v.  Cooper,  I  Railw.  C.  396;  s.  c.  15  Sim.  343.  All  parties  con- 
cerned must  be  made  parties  to  the  bill,  even  shareholders  of  whom  it  is  alleged 
a  rival  company  propose  to  purchase  shares,  to  destroy  the  independency  of  one 
of  the  companies  connected  with  the  common  enterprise.  Greathed  v.  S.  W.  & 
Dorchester  Railway,  1  Railw.  ('.  213;  s.  c.  10  Jur.  343. 

J  Lewis  v.  Billing,  4  Railw.  C.  414;  s.  c.  10  Jur.  851.  Bagshaw  v.  Eastern 
Union  Railway,  6  Railw.  C.  152;  s.  c.  7  Hare,  114;  Bryson  V.Warwick  & 
Birmingham  (anal  Co.,  23  Eng.  L.  &  Eq.  91;  s.  c.  4  De  G.  Mae.  &  G. 
711.  In  tlii-  last  case,  the  railway  company  being  only  provisionally  registered, 
expended  £10,0  >0  in  the  purchase  of  the  stock  of  the  defendants.  The  railway 
finally  failing  to  go  into  operation,  in  the  process  of  winding  up,  one  of  the 
shareholders  was  allowed  to  institute  proceedings  in  equity,  on  behalf  of  him- 
Belf  and  others,  being  shareholders,  to  compel  defendants  to  refund  the  money, 
and  the  court  held  the  contract  ultra  vires  and  compelled  the  defendants  to  refund 
the  money  received  under  it. 

!7,    Birmingham,  B.  &  Th.  J.  Railway  v.  Locke,  1  Q.  B.  256; 
I Ion  Grand  J.  Railway  v.  Graham,  id.  271;  s.  c.  2  Q.  B.  281;  The  Chelten- 
ham &  G.  \V.  ['.  Railway,   v.   Daniel,  2  Railw.  C.  728;   Sheffield  &  A.  &  M. 
Railway  v.  Woodcock,  2  Railw.  C.  522;  s.  c.  7  M.  &  W.  574. 
Bilbrough,  19  Law  J.  522;  s.  c.  8  Hare,  188. 

6  Hodges  on  Railways,  97. 

[*6] 


§  2.  MODE    OF    INSTITUTING    RAILWAY   PROJECTS.  9 

cannot  abandon  the  obligation  at  will.7  But  if  the  scrip  is  trans- 
ferable, by  delivery,  it  would  be  strange  if  the  holder  was  not  enti- 
tled *  to  be  registered,  as  a  shareholder,  the  same  as  the  assignee  of 
a  fully  registered  share  in  the  stock.  And  for  the  company,  after 
having  issued  scrip  certificates,  in  a  form  calculated  to  invite  pur- 
chases, and  when  they  were  aware  of  the  use  constantly  made  of 
such  scrip,  to  refuse  to  register  the  names  of  the  holders,  as  share- 
holders and  members  of  the  company,  would  amount  to  little  less 
than  express  fraud.  Hence  we  conclude  they  have  no  right  to 
decline  accepting  such  scripholder,  as  a  shareholder.8  But  where 
false  scrip  had  been  issued,  beyond  the  amount  allowed  in  the  char- 
ter, and  the  full  number  of  shares  allowed  by  the  charter  already 
registered,  it  was  held  the  company  could  not  upon  that  ground 
refuse  to  register  the  shares  of  such  as  had  purchased  the  genuine 
scrip.9  But  we  shall  have  occasion  to  say  more  upon  this  subject 
elsewhere.10 

6.  By  the  laws  of  some  of  the  states  a  given  number  of  persons 
associating,  in  a  prescribed  form,  for  particular  purposes,  as  relig- 
ious, manufacturing,  and  banking  purposes,  and  often  for  any 
lawful  purpose,  are  declared  to  be  a  corporation.  In  such  cases 
no  application  to  the  legislature  is  required.  But,  generally,  rail- 
ways in  this  country  have  obtained  special  acts  of  incorporation. 
There  is,  in  most  of  the  states,  no  provision  for  any  preliminary 
association,  and  these  enterprises  are,  for  the  most  part,  carried 
forward,  by  individuals,  or  partnerships,  and  questions  arising,  in 
regard  to  the  binding  force  of  the  acts  of  the  promoters,  either 
upon,  or  towards  the  corporation,  must  depend  upon  the  general 
principles  of  the  law  of  contract.11 

7.  By  the  general  law  of  some  of  the  states  the  petitioners  are 
required  to  furnish  surveys  of  the  proposed  route,  properly  delin- 
eated upon  charts,  by  competent  engineers,  with  estimates,  and 
other  information  requisite  for  the  full  understanding  of  the  sub- 
ject.    And  these  profiles  and  plans  are  required,  where  the  peti- 

7  Kidwelly  Canal  Co.  v.  Raby,  2  Price,  93  ;  Great  North  of  Eng.  Railway  v. 
Biddulph,  2  Railw.  C.  401 ;  s.  c.  7  M.  &  W.  243,  where  the  question  is  raised, 
but  not  determined. 

8  Midland  G.  W.  Railway  v.  Gordon,  5  Railw.  C.  76 ;  s.  c.  16  M.  &  W.  804. 

9  Daly  v.  Thompson,  10  M.  &  W.  309. 

10  Post,  §§  39,  47. 

11  Angell  &  Ames  on  Corporations,  §§  86-94. 

[*7] 


10  PRELIMINARY   ASSOCIATIONS.  PART   I. 

tion  is  granted,  to  lie  deposited  in  some  public  office,  for  inspection 
and  preservation.12 

s.  Since  the  publication  of  the  second  edition  of  this  work,  the 
mode  of  procedure  in  obtaining  parliamentary  powers  for  railways, 
*  in  England,  lias  been  considerably  changed.  The  former  laws 
havo  been  repealed,  and  the  whole  consolidated  into  one  statute,13 
called  -The  Companies'  Act,  1862,"  which  applies  to  other  com- 
panies as  well  as  railways. 

9.  The  usual  course  now  is  for  the  preliminary  association  to 
ster  itself  as  a  preliminary  company  under  the  Act  of  1862, 

for  the  purpose  of  obtaining  a  special  Act  of  Parliament.  This  is 
effected  by  the  promoters  signing  a  memorandum  of  association, 
in  which  the  powers  of  the  company  are  specially  limited  to  certain 
acts  or  purposes. 

10.  If  the  association  be  not  registered  under  the  statute  so  as 
to  constitute  it  a  corporation  with  limited  powers,  there  may  be 
danger  that  the  individual  members,  who  are  active  in  promoting 
the  enterprise,  may  incur  the  responsibility  of  general  partners.14 
But  in  England,  it  seems  now  settled  that  the  promoters  of  rail- 
ways are  not,  ordinarily,  to  be  held  responsible,  as  partners,  for 
the  acts  of  each  other.15 

'-  Laws  of  Mass.  1833,  ch.  176;  2  Railroad  Laws  &  Ch.  616;  id.  657;  Laws 
of  Mass.  18-18,  ch.  140 ;  Laws  of  Rhode  Island,  1836  ;  2  Rail.  Laws  &  Ch.  838  ; 
Laws  of  Conn.  1849,  ch.  37  ;  id.  1853;  Rev.  Statutes  of  Maine,  ch.  81,  §  1  ;  1 
Rail.  Laws  &  Ch.  305.  Similar  provisions  exist  in  many  of  the  other  states. 
But  they  are  very  general,  and  ordinarily  the  plans  furnished  are  so  imperfectly 
ma  le  as  not  to  afford  much  protection  to  land-owners.  And  a  compliance  with 
these  requirements  not  being,  in  any  sense,  indispensable  to  the  validity  of 
special  acts,  they  are  probably  not  very  strenuously  enforced  by  legislative  com- 
mittees, especially  in  cases  where  opposition  is  not  made  to  the  new  incorpora- 
tion, which  is  not  very  common  unless  the  project  interferes  with  some  rival 
■work. 

13  25  &  26  Vict.  c.  89. 

14  Hodges  on  Railways  (ed.  1865),  2. 

:  Hamilton  v.  Smith,  5  Jur.  (N.  S.)  32;  post,  §  4,  n.  11;  Norris  v.  Cooper, 
3  II.  Lds.  Cas.  161.  Statute  27  &  28  Vict.  c.  121,  facilitates,  in  certain  cases, 
the  obtaining  of  powers  for  the  construction  of  railways.  The  act  may  be  cited 
as  "The  Railways  Construction  Facilities  Act,  1864."  The  recital  to  the  pre- 
amble enumerates  the  cases  to  which  the  act  is  to  apply ;  it  recites  that  it  is 
expedient  to  facilitate  the  making  of  branch  and  other  lines  of  railway,  and  de- 
viations of  existing  railways,  and  of  railways  in  course  of  construction,  and  also 
the  execution  of  new  works  connected  with,  or  for  the  purposes  of,  existing  rail- 
ways; and  that  the  object  aforesaid  would  be  promoted,  if,  where  all  land-owners 

[*8] 


§  3.      CONTRACTS    OF   PROMOTERS   NOT   BINDING   UPON   COMPANY.        11 

♦SECTION    II. 

Contracts  of  the  Promoters  not  binding  at  laxo  upon  the  Company. 

1.  In  this  country,  promoters  only  bind  them-  \  3.  But  by  consenting  to  a  decree   in  equity 


selves  and  associates. 
2.   Contracts  of  promoters  not  enforceable  by 
company. 


setting   up  the    contract,   the    company 
will  be  held  to  have  adopted  it. 


§  3.  1.  The  promoters  of  railways,  in  this  country,  where  the 
law  makes  no  provision  for  the  preliminary  association  becoming 
a  corporation,  can  only  bind  themselves  and  their  associates,  at 
most,  by  their  contracts.1     The  promoters  are  in  no  sense  identi- 

and  other  parties  beneficially  interested  are  consenting  to  the  making  of  a  rail- 
way, or  the  execution  of  a  work,  the  persons  desirous  of  making  or  executing 
the  same  were  enabled  to  obtain  power  to  do  so,  on  complying  with  the  con- 
ditions of  the  general  Act  of  Parliament,  without  being  obliged  to  procure  a 
special  act.  The  promoters  having  contracted  for  the  purchase  of  all  the  lands 
required  for  the  railway,  they  are  empowered  to  apply  for  a  certificate  from  the 
Board  of  Trade,  in  the  same  manner,  and  subject  to  the  same  incidents,  as  ob- 
taining a  certificate  under  the  Railways  Companies'  Powers  Act.  The  lines  and 
works  of  a  railway  are  sufficiently  shown  on  the  plans  deposited  by  a  black  line, 
with  dotted  lines  on  each  side,  to  mark  the  limits  of  deviation.  Weld  v.  London 
&  Southwestern  Railway  Co.,  9  Jur.  (N.  S.)  510;  s.  c.  11  W.  R.  448;  32 
Beav.  340.  Where  the  deposited  plans  and  sections  specify  the  span  and  height 
of  a  bridge  by  which  a  railway  is  to  be  carried  over  a  turnpike  road,  the  company 
will  not,  in  the  construction  of  the  bridge,  be  allowed  to  deviate  from  the  plans 
and  sections.  Attorney-General  v.  Tewkesbury  &  Great  Malvern  Railway 
Company,  1  De  G.  J.  &  Sm.  423;  9  Jur.  (N.  S.)  951;  s.  c.  8  L.  T.  (N.  S.) 
682. 

1  Moneypenny  v.  Hartland,  1  C.  &  P.  352.  Abbott,  C.  J.,  said:  "Before 
an  act  passes  for  su-jh  a  work  as  this,  the  surveyor  and  other  persons  employed 
on  it  look  to  the  committee,  or  body  of  adventurers,  who  first  employ  them." 
s.  p.  Kerridge  v.  Hesse,  -9  C.  &  P.  200;  Doubleday  v.  Muskett,  7  Bing.  110. 
And  one  who  attends  the  meetings  of  such  preliminary  association,  and  takes 
part,  will  ordinarily  be  precluded  from  denying  his  liability  as  a  partner.  Har- 
rison v.  Heathorn,  6  Man.  &  Gr.  81  ;  Sheffield,  Ash.  &  M.  Railway  v.  Wood- 
cock, 7  M.  &  W.  574.  If  the  defendants  have  suffered  themselves  to  be  held 
out  as  partners  in  the  enterprise,  and  engaged  in  carrying  it  forward,  and  others 
have  performed  service  for  the  association,  upon  their  credit,  they  are  liable. 
Wood  v.  The  Duke  of  Argyll,  6  Man.  &  Gr.  928 ;  Steigenberger  v.  Carr,  3  id. 
191.  But  express  proof  is  required  of  authority  from  the  partners,  or  of  a 
necessity  to  draw  bills,  in  the  conduct  of  the  business,  to  justify  the  directors  in 
drawing  bills  on  the  credit  of  the  association.     Dickinson  v.  Valpy,  10  B.  &  C. 

[*9] 


12  PRELIMINARY    ASSOCIATIONS.  PART   I. 

cal*  with  the  corporation,  nor  do  they  represent  them,  in  any  rela- 
tion of  agency,  and  their  contracts  could  of  course  only  bind  the 
company,  so  far  as  they  should  be  subsequently  adopted  by  it,  as 
their  successors  ;  much  in  the  same  mode  and  to  the  same  extent, 
and  under  the  same  restrictions  and  limitations,  as  the  contracts 
of  one  partnership  bind  a  succeeding  partnership  in  the  same 
house. 

2.  But  a  contract  by  a  joint-stock  association,  that  each  member 
shall  pay  all  assessments  made  against  him,  cannot  be  enforced 
by  a  corporation  subsequently  created,  and  to  which,  in  pursu- 
ance of  the  original  articles  of  association,  the  funds  and  all  the 
effects  of  the  former  company  have  been  transferred.2     Nor  is  the 

128.  From  the  foregoing  cases,  and  Bell  v.  Francis,  9  C.  &  P.  66,  and  some 
Others,  it  would  seem,  that  the  directors  and  managing  committee  are  always 
liable  for  services  rendered  such  associations,  on  their  employment  and  credit, 
and  that  such  other  members  of  the  association  are  liable  also,  as  the  terms  of 
the  association,  or  their  own  active  agency  in  the  employment  of  servants  and 
its,  fairly  justify  such  employes  in  looking  to,  for  compensation.  It  was 
held,  in  Scott  v.  Lord  Ebury,  Law  Rep.  2  C.  P.  255,  that  the  promoters  were 
responsible  for  money  expended  in  obtaining  the  act  of  parliament,  notwithstand- 
ing the  incorporation  and  the  assumption  of  these  acts  by  the  company.  And 
one  of  the  promoters  cannot  in  equity  compel  others  to  contribute  to  expenses 
incurred  by  him,  unless  he  is  willing  to  have  all  the  expenses  brought  into  one 
account  and  adjusted  together.  Denton  v.  Macniel,.  Law  Rep.  2  Eq.  352  ;  post, 
§  4,  n.  11.  In  regard  to  admissions  made  by  provisional  committee-men,  and 
others,  who  have  taken  part  in  instituting  railway  projects,  some  allowance  is 
made  in  the  English  courts,  for  probable  mistakes  and  misapprehensions,  by 
those  not  well  acquainted  with  the  liabilities  of  such  persons.  Newton  v.  Belcher, 
6  Kailw.  C.  38;  s.  c.  12  Q.  B.  921.  And  where  others  have  not  acted  upon  such 
admissions,  the  party  has  been  allowed  to  show  that  they  were  made  under  mis- 
take, either  of  law,  or  fact,  and  if  so,  the  party  has  been  held  not  to  have  in- 
curred any  additional  liability  thereby.  Newton  v.  Liddiard,  6  Railw.  C.  42; 
s.  c.  12  <,>.  B.  'JJ~>.     The  rule  laid  down  by  Bailey,  J.,  in  Heane  v.  Rogers,  9 

B.  &  C.  577,  upon  this  subject,  is  here  expressly  recognized  by  Lord  Denman, 

C.  J.  "The  general  doctrine  laid  down  in  Heane  v.  Rogers,  that  the  party  is  at 
liberty  to  prove  that  his  admissions  were  mistaken,  or  untrue,  and  is  not  estopped, 
or  concluded  by  them,  unless  another  person  has  been  induced  by  them  to  alter 
his  condition,  is  applicable  to  mistakes,  in  respect  of  legal  liability,  as  well  as  in 

ei  t  of  fact."  And  this  estoppel,  it  was  held  in  the  principal  case,  only  ex- 
tends to  parties  and  priviefe,  to  the  particular  transaction  in  which  the  admission 
was  mad'-,  and  thai  third  parties  having  no  interest  in  it,  either  originally  or  by 
derivation,  can  claim  no  benefit  from  it.  This  is  in  accordance  with  the  estab- 
lished principles  of  the  law  of  evidence,  at  the  present  time.  See  the  opinion  of 
the  court  in  Strong  v.  Ellsworth,  26  Vt.  366. 

-  Wallingford  Manufacturing  Co.  v.  Fox,  12  Vt.  304;  Goddard  v.  Pratt,  16 

[*10] 


4. 


SUBSCRIBERS    TO    PRELIMINARY    ASSOCIATION. 


13 


act  of  *  all  the  corporators  even,  the  act  of  the  corporation,  unless 
done  in  the  mode  prescribed  by  the  charter  and  general  laws  of 
the  state.3  Nor  can  an  incorporated  company  sustain  an  action  at 
law,  upon  a  bond  executed  to  a  preliminary  association,  by  the 
name  of  the  individuals  and  their  successors,  as  the  governors  of 
the  Society  of  Musicians,  for  the  faithful  accounting  of  A.  B.,  their 
collector,  to  them  and  their  successors,  governors,  &c,  the  com- 
pany being  subsequently  incorporated.4 

3.  But  the  company,  by  consenting  to  a  decree  against  them, 
upon  a  bill  to  enforce  a  contract  with  the  promoters,  by  which 
they  stipulated  to  withdraw  opposition  in  parliament,  upon  condi- 
tion that  the  company,  when  it  came  into  operation,  should  take 
the  land  of  the  opposers  of  the  bill  at  a  specified  price,  and  pay  all 
the  costs  and  expenses  of  the  opposition  until  the  time  of  the  com- 
promise, were  held  to  have  adopted  the  agreement,  whether  it 
would  have  been  otherwise  binding  upon  them  or  not.5 


SECTION     III. 


Subscribers  to  the  Preliminary  Association  inter  sese. 


1.  Liability  for  acts  of  directors  limited  by 

terms  of  subscription. 

2.  Association  not  binding  until  preliminaries 

are  complied  with. 

3.  Contracts,  how  far  controlled  by  oral  rep- 

resentations of  directors. 

4.  Subscribers  not  excused  from  paying  calls 

by  contract  of  directors. 


5.  Not  liable  for  expenses,  except  by  terms  of 

agreement. 

6.  Deeds  of  association  generally  make  pro- 

vision for  expenses. 

7.  One  ivho  obtains  shares,  ivithout  executing 

the  deed,  not  bound  to  contribute, 
n.  11.  No   relation    of  general  partnership 
subsists  between  subscribers. 


§  4.  1.  The  project  for  a  railway  being  set  on  foot  by  a  pro- 
visional committee  of  directors  or  managers,  the  subscribers  may 
insist  iipon  the  terms'  of  subscription.  The  subscribers  are  not 
bound  by  any  special  undertaking  of  the  directors,  or  any  portion 


Pick.  412,  where  it  is  held,  the  original  copartners  are  still  liable,  upon  contracts 
made  with  third  parties,  ignorant  of  the  dissolution  by  the  effect  of  the  incorpora- 
tion, the  company  having  carried  on  business  in  the  name  of  the  partnership. 
8  Wheelock  v.  Moulton,  15  Vt.  519. 

4  Dance  v.  Girdler,  4  Bos.  &  P.  34.     See  Gittings  v.  Mayhew,  G  Md.  11". 

5  Williams  v.  St.  George's  Harbor  Co.,  2  De  G.  &  J.  547;  s.  c.  4  Jur.  (N. 
S.)  1066. 

[•11] 


1 4  PRELIMINARY   ASSOCIATIONS.  PART   I. 

of  them,  beyond  or  aside  of  the  powers  conferred  by  the  terms  of 
the  deed  or  contract  of  association.1 

2.  And  the  association  is  not  binding,  until  the  provisions  by 
*  which  it  is,  by  its  own  terms,  to  become  complete,  are  complied 
with.  \i'  before  that  the  scheme  be  abandoned,  the  provisional 
subscribers,  or  allottees,  may  recover  back  their  deposits  of  the 
provisional  committee,  in  an  action  for  money  had  and  received.2 
So,  too,  if  one  is  induced  to  accept  of  shares  in  the  provisional 
company,  by  fraudulent  representations,  he  may  recover  back  the 
whole  of  his  deposits.3 

3.  But  if  one  actually  become  a  subscriber,  he  is  bound  by  the 
terms  of  subscription,  without  reference  to  prior  oral  representa- 
tions, and  must  bear  a  portion  of  the  expense  incurred,  if  the  sub- 
scription so  provide.4  But  if  the  directors,  in  such  provisional 
company,  in  order  to  induce  subscriptions,  promise  the  subscriber, 
that  in  the  event  of  no  charter  being  obtained,  he  shall  be  repaid 
his  entire  deposit,  this  contract  is  binding  upon  them,  and  may  be 
enforced  by  action,  notwithstanding  the  subscriber's  agreement 
authorized  the  directors  to  expend  the  money  in  the  mode  they 
did.5 

4.  But  the  contract  of  the  directors  will  not  excuse  the  sub- 
scriber from  paying  calls,  if  the  terms  of  the  subscriber's  agree- 
ment require  it.6  The  contract  of  the  directors  in  such  case,  and 
the  deed  of  association,  are  wholly  independent  of  each  other,  and 
neither  will  control  the  other.7 

5.  But  it  has  been  held,  that  persons,  by  taking  shares  in  a 
projected  railway,  do  not  bind  themselves  to  pay  any  expense 
incurred,  unless  it  is  so  provided  in  the  preliminary  contracts  of 

1  Londesborough  ex  parte,  27  Eng.  L.  &  Eq.  292  ;  s.  c.  4  De  G.  M.  &  G. 
411 ;  Ea  parte  Mowatt,  1  Drewry,  247. 

-  Walstab  o.  Spottiswoode,  4  Railway  C.  321 ;  s.  c.  15  M.  &  W.  501. 

3  Jarrett  v.  Kennedy,  6  C.  B.  319. 
W  aits  v.  Salter,  10  C.  B.  477.     And  if  one  subscribe  the  agreement  and 
parliamentary  contract,   he  will  be  liable,   although  he  have  not  received  the 
shares  allotted  to  him  or  paid  the  deposits.     Ex  parte  Bowen,  21  Eng.  L.  &  Eq. 
422. 

'  Mowatt  v.  Londesborough,  25  Eng.  L.  &  Eq.  25,  and  3  El.  &  Bl.  307;  s.  c. 
in  error,  28  Eng.  L.  &  Eq.  119,  and  4  El.  &  Bl.  1 ;  Ward  v.  Same,  22  Eng.  L. 
&  Eq.  402. 

8  Ex  parte  Mowatt,  1  Drewry,  247. 

3  Dover  &  Deal  Railway,  ex  parte  Mowatt,  19  Eng.  L.  &  Eq.  127;  s,  c.  1 
Drew.  _  17. 

[•12] 


§  4.  SUBSCRIBERS   TO    PRELIMINARY   ASSOCIATION.  15 

association,  or  the  expense  is  incurred  with  their  sanction  and 
upon  their  credit.8  And  even  where  such  shareholder  consents  to 
act  on  the  provisional  committee,  it  will  not  render  him  liable,  as 
a  contributory,  to  the  expense  of  the  company.9 

*  6.  But  in  general,  the  form  of  the  deeds  of  association  is  such, 
that  if  one  takes  shares  without  reservation,  he  is  to  be  regarded 
as  a  contributory  to  the  expense,10  and  especially  where  he  acts  as 
one  of  the  provisional  committee,  and  also  accepts  shares  allotted 
to  him.10 

7.  But  one  who  had  obtained  shares  in  a  projected  railway  com- 
pany, but  without  executing  the  deed  of  settlement,  or  any  deed 
referring  to  it,  was  held  not  liable  to  contribute  to  the  expense 
incurred,  in  attempting  to  put  the  company  in  operation,11  and 
especially  if  the  acceptance  of  the  shares  was  conditional,  upon  the 
full  amount  of  the  capital  of  the  company  being  subscribed,  which 
was  never  done.11 

8  Maudslay  ex  parte,  1  Eng.  L.  &  Eq.  61;  s.  c.  14  Jur.  1012. 

9  Carmichael  ex  parte,  1  Eng.  L.  &  Eq.  66;  s.  c.  14  Jur.  1014;  Clarke  ex 
parte,  id.  69  ;  s.  c.  20  L.  J.  (N.  S.)  ch.  14. 

10  Burton  ex  parte,  13  Eng.  L.  &  Eq.  435 ;  s.  c.  16  Jur.  967  ;  Markwell  ex 
parte,  13  Eng.  L.  &  Eq.  456  ;  s.  c.  5  De  G.  &  S.  528 ;  UpfilPs  Case,  1  Eng.  L. 
&  Eq.  13 ;  s.  c.  14  Jur.  843 ;  Watts  v.  Salter,  12  Eng.  L.  &  Eq.  482.  See  also 
St.  James's  Club  in  re,  13  Eng.  L.  &  Eq.  589;  s.  c.  10  C.  B.  477,  as  to  the 
effect  of  proof  of  the  subscriber  being  present  when  a  resolution  is  passed. 

11  The  Galvanized  Iron  Co.  v.  Westoby,  14  Eng.  L.  &Eq.  386  ;  S.  C.  8  Exch. 
17.  It  was  formerly  considered  that  all  persons  engaged  in  obtaining  a  bill  in 
parliament  for  building  a  railway,  were  partners  in  the  undertaking,  and  for  that 
reason  a  subscriber,  who  acted  as  their  surveyor,  could  not  maintain  an  action 
for  work  and  labor,  done  by  him  in  that  character,  against  all  or  any  one  of  the 
subscribers.  Holmes  v.  Higgins,  1  B.  &  C.  74.  See  also  Goddard  v.  Hodges, 
1  C.  &  M.  33.  But  it  is  now  regarded  as  well  settled,  in  all  the  courts  in  West- 
minster Hall,  that  there  subsists  between  the  subscribers  to  such  an  enterprise  no 
relation  of  general  partnership  whatever,  and  no  power  to  bind  each  other  for 
expenses  incurred  in  carrying  forward  the  enterprise.  Each  binds  himself  only 
by  his  own  acts  and  declarations,  unless  he  acts  by  virtue  of  some  authority  con- 
ferred by  the  deeds  of  association.  Parke,  Baron,  in  Bright  v.  Hutton,  3  H.  L. 
Cases,  341,  368.  And  an  agreement,  aside  of  the  deed  of  association,  that  one 
of  the  promoters  shall  indemnify  another,  is  held  valid.  Connop  v.  Levy,  5 
Railw.  C.  124;  s.  c.  11  Q.  B.  769.  But  a  general  indemnity  against  costs  will 
only  extend  to  costs  in  suits  lawfully  brought.  Lewis  v.  Smith,  2  Shelford  (Ben- 
nett's ed.),  1030.  And  in  regard  to  liability,  for  expenses  incurred  in  carrying 
forward  railway  projects,  it  often  happens,  that  one  who  has  been  active  may 
thereby  make  himself  liable  to  tradesmen  and  others  who  have  performed  service 
in  behalf  of  the  enterprise,  upon  the  expectation  he  would  see  them  paid.     In 

[*13] 


llj  PRELIMINARY    ASSOCIATIONS.  PART    I. 

♦SECTION     IV. 
rUract8  of  the  Promoters  adopted  by  the  Company. 

1.   Liability  may  b   transferred  with  assent  of  i  n.  '■'>.  Powers  of  provisional  company  to  con- 
}.  But  not  unless  that  i  tract  limited  by  statute. 

§  5.  1.  The  company  when  fully  incorporated  may  assume  the 
liabilities   of  the    preliminary  association,  incurred  in  obtaining 

Lake  r.  Duke  of  Argyll,  G  Q.  B.  477,  479,  Denman,  C.  J.,  said:  "  But  when 
juts,  .us  meet  to  prepare  the  measures  necessary  for  calling  the  society  into  exist- 
ence, attendance  on  such  meeting,  and  concurrence  in  such  measures,  may  be 
strong  evidence,  that  any  individual  there  present,  and  taking  part  in  the  pro- 
ceedings,  held  himself  out  as  a  paymaster  to  all  who  executed  their  orders;  and 
though  not  liable  as  a  member  or  shareholder,  yet  his  declared  intention  to 
become  the  president,  or  a  member,  in  whatever  event,  or  to  take  a  share  under 
any  conditions,  may  be  material  evidence  to  show  that  he  authorized  contracts 
with  those  whose  services  were  required  by  what  may  be  called  the  constituent 
body.11 

But  a  charge  to  the  jury,  that  before  surveyors,  in  such  case,  could  recover  of 
the  provisional  committee,  theyr  must  be  satisfied  that  defendants  did,  by  them- 
selves or  their  agent,  employ  the  plaintiff  to  do  the  work,  or  that,  being  informed 
of  their  having  done  it,  on  their  credit,  by  the  employment  of  some  one  not 
authorized,  they  consented  to  be  held  liable,  was  affirmed  in  the  Exchequer 
(  lumber.  Nevins  v.  Henderson,  5  Railw.  C.  684;  Williams  v.  Pigott,  5  Railw. 
(  .  544;  s.  c.  2  Exch.  201.  See  also  Spottiswoode's  Case,  39  Eng.  L.  &  Eq. 
520.  Since  the  publication  of  the  second  edition  of  this  work,  the  English 
courts  have  made  numerous  decisions  bearing  upon  the  general  subject  discussed 
in  this  note.  In  Maddick  v.  Marshall,  10  Jur.  (N.  S.)  1201,  the  defendant  was 
employed  by  the  parties  in  interest  to  act  as  provisional  director  in  connection 
with  others,  under  the  assurance  from  the  solicitor  of  such  parties,  that  they 
wen-  safe  and  would  incur  no  personal  responsibility;  and  the  directors  there- 
upon appointed  the  principal  party  in  interest  secretary,  and  passed  a  resolu- 
tion to  advertise,  which  resolution  was  signed  by  the  defendant  as  director.  The 
plaintiff,  upon  taking  the  order,  was  shown  the  resolution  certified  by  the  defend- 
ant as  authority  for  the  order.  The  court  held  this  testimony  for  the  jury  to 
consider,  tending  to  show  a  personal  undertaking  by  defendant,  and  that  they 
could  not  disturb  a  verdict  against  him.     See  also  Swan  v.   The  North  British 

dasian  I  !o.,  7  H.  &  X.  003;  s.  c.  8  Jur  (N.  S.)  940,  as  to  what  acts  will 
cnatc  an  estoppel  in  such  cases.  Under  the  English  statute,  all  the  subscribers 
an-  constituted  directors  until  they  designate  who  shall  act  in  that  capacity,  and 
have  authority  to  appoint  one  of  their  number  to  an  office  in  the  company.  Eales 
V.  The  Cumberland  Black  Lead  Mine  Co.,  6  II.  &  N.  481  ;  s.  c.  7  Jur.  (N.  S.) 
169.      It  seems  to  be  considered  essential,  in  order  to  fix  the  liability  of  a  sub- 

[*14] 


§  5.  CONTRACTS    OP   PROMOTERS    ADOPTED.  17 

the  special  act,  or  as  is  sometimes  the  case,  where  the  association 
*  make  an  assignment  of  their  property.1  But  even  an  express 
provision  in  the  charter,  that  the  company  shall  he  solely  liable 
for  the  debts  of  the  association,  will  not  exonerate  the  association 
unless  by  the  consent  of  the  creditors.2  But  when  the  company 
assume  the  debts  of  the  association,  by  the  assent  of  their  cred- 
itors, they  will  be  relieved.3     But  where  the  plaintiff  contracted 

seriber  to  the  articles  of  association  on  that  ground  alone,  that  the  subscription 
should  be  in  his  own  handwriting,  and  not  by  procuration  merely.  Richardson 
ex  parte,  4  Law.  T.  (N.  S.)  589.  The  company  are  not  bound  to  give  notice  of 
the  allotment  of  shares  in  order  to  bind  the  subscriber  to  take  them.  It  is  his 
duty  to  take  notice  of  the  allotment,  and  to  make  payment  of  all  future  dues 
fixed  by  law,  or  the  terms  of  the  contract.  Bloxam  ex  parte,  10  Jur.  (N.  S.) 
814  ;  s.  c.  33  Beav.  529.  But  in  order  to  render  the  allottee  liable  to  pay  calls 
on  shares,  they  should  be  specifically  numbered  and  appropriated  by  number. 
Irish  Peat  Co.  v.  Phillips,  7  Jur.  (N.  S.)  413 ;  s.  c.  affirmed  7  Jur.  (N.  S.)  1189, 
1  B.  &  S.  598.  But  semble  he  may  be  estopped  to  deny  his  membership.  So, 
too,  it  was  considered  in  this  case,  that  in  order  to  bind  an  associate  to  pay  future 
calls,  it  was  essential  that  he  should  have  subscribed  the  deed  of  association. 
The  provision  of  the  English  statute  as  to  the  period  within  which  the  register 
of  shareholders  shall  be  made  and  sealed  is  regarded  as  directory,  so  far  as  the 
liability  of  shareholders  is  concerned,  and  they  will  not  be  exonerated  from  re- 
sponsibility by  a  failure  of  the  company  to  comply  with  the  direction.  W.  N.  W. 
Co.  v.  Hawksford,  11  C.  B.  (N.  S.)  456;  8  Jur.  (N.  S.)  844  in  Exchequer 
Chamber.  The  company,  when  fully  incorporated,  may  sue  in  their  own  name 
upon  calls  made  by  the  directors  of  the  preliminary  incorporation.  Hull  Co.  v. 
Wellesley,  6  H.  &  N.  38.  A  registered  shareholder  in  a  company,  which  was 
afterwards  incorporated  with  a  new  company,  is  entitled  to  be  regarded  as  a 
shareholder  in  the  new  company,  if  the  act  of  incorporation  so  provide,  although 
he  may  not  have  exchanged  his  certificate  for  shares  in  the  old  company  for  those 
in  the  new  company.  Spackman  v.  Lattimore,  3  Giff.  16  ;  s.  c.  7  Jur.  (N.  S.) 
179.  It  was  further  decided  in  this  case,  that  the  subscribers  could  not  charge 
their  own  subscriptions  against  the  company  as  money  advanced  for  their  benefit. 
Where  a  subscriber  has  paid  for  the  expenses  of  the  promoters  all  that  the  terms 
of  association  required,  he  cannot  be  charged  further,  because  he  made  the  pay- 
ment without  taxation.  Croskey  v.  Bank  of  Wales,  4  Giff.  314.  The  property  in 
shares  vests  in  the  subscriber  upon  the  execution  of  the  deed  and  complete  regis- 
tration of  the  company,  and  the  delivery  of  scrip  certificates  is  not  requisite 
to  vesting  the  shares,  but  they  are  to  be  regarded  merely  as  the  indicia  of  prop- 
erty.    Hunt  v.  Gunn,  3  F.  &  F.  223. 

1  Haslett's  Ex'rs  v.  Wotherspoon,  1  Strob.  Eq.  209;  Salem  Mill  Dam  Co.  v. 
Ropes,  6  Pick.  23. 

2  Witmer  v.  Schlatter,  2  Rawle,  359. 

3  Whitwell  v.  Warner,  20  Vt.  425.  But  by  the  English  statutes  companies 
provisionally  registered  are  not  allowed  to  make  any  contract,  not  indispensable 
to  carrying  forward  the  project  to  full  registration.      And  where  the  directors  of 

2  [*15j 


18  PRELIMINARY   ASSOCIATIONS.  PART   I. 

*  with  the  promoters  of  a  railway  bill  to  bear  the  costs  of  obtaining 
it.  and  the  bill  passed  with  the  usual  clause  that  the  costs  of 
obtaining  it  should  be  borne  by  the  .company,  it  was  nevertheless 
held,  that  the  contract  would  preclude  the  recovery  of  the  costs  of 
the  corporation.4 


SECTION    V. 

//-  ■  •  //tracts  of  the  Promoters  may  be  adopted  by  the  Company. 

( 'annot  assume  the  benefit  without  the  burden. 

§  6.  Wherever  a  third  party  enters  into  a  contract  with  the 
promoters  of  a  railway,  which  is  intended  to  enure  to  the  benefit 
of  the  company,  and  they  take  the  benefit  of  the  contract,  they 
will  be  bound  to  perform  it,  upon  the  familiar  principle  that  one 
who  adopts  the  benefit  of  an  act,  which  another  volunteers  to  per- 
form in  his  name  and  on  his  behalf,  is  bound  to  take  the  burden 
with  the  benefit.1 

such  a  company  contracted  for  plans,  sections,  and  books  of  reference,  to  the 
value  of  £3,000,  it  was  held  a  violation  of  the  statute  and  illegal,  and  that  no 
recovery  could  be  had  upon  it.  Bull  v.  Chapman,  20  Eng.  L.  &  Eq.  488 ;  s.  C. 
8  Exch.  Ill;  7  &  8  Vict.  c.  110.  A  contract  made  between  the  projector  and 
the  directors  of  a  company  provisionally  registered,  but  not  in  terms  made  con- 
ditional on  the  completion  of  the  company,  is  not  binding  upon  the  subsequently 
completely  registered  company,  although  ratified  and  confirmed  by  the  deed  of 
settlement.  Gunn  v.  London  and  Lancashire  Assurance  Co.,  12  C.  B.  (N.  S.) 
694.  The  promoters  of  a  railway  company  agreed  with  the  tenant  for  life  of  set- 
tled estates  to  pay  him  £20,000  for  obtaining  his  support  to  their  scheme.  This 
agreement  was  afterwards  adopted  by  the  provisional  committee  of  a  second 
company,  which  stood  in  place  of  the  first.  The  second  company's  bill  passed, 
and  an  indenture  was  made  under  the  company's  seal,  by  which,  on  the  ground 
of  doubts  as  to  the  absolute  right  of  the  tenant  for  life  to  the  £20,000,  the  com- 
pany was  to  retain  the  sum  and  pay  interest  on  it.  Interest  was  paid  for  some 
years,  but  at  length  the  company  refused  to  make  any  further  payment.  Upon 
a  bill  by  a  subsequent  tenant  for  life  of  the  estates  to  have  the  company's  liability 
declared,  and  obtain  payment  of  the  £20,000  for  the  benefit  of  the  settled  estate : 
Ibid,  thai  the  contract  was  ultra  vires,  and  could  not  be  enforced.  Held,  also, 
that  this  was  not  within  the  meaning  of  the   Companies'   Clauses  Consolidation 

\  ]  ■      65,  as  being  in  respect  of  "costs  incurred  in  obtaining  the  special  act, 
and   incident   thereto."     Lord   Shrewsbury  v.  North  Staffordshire  Railw.  V.  C. 

Kindersley ;  L2  -Jur.  (N.  S.)  6;>. 

*  Savm  v.  llylake  Railway,  Law  Rep.  1  Exch.  9  ;  s.  c.  Law  Rep.  1  Eq.  593. 
1  Gooday  v.  The  Colchester  &  Stour  Valley  Railway,  15  Eng.  L.  &  Eq.  596  ; 

[*16] 


§  7.  CONTRACTS   BETWEEN   PROMOTERS   AND    OPPOSERS.  19 


♦SECTION     VI. 

Contracts  between  the  Promoters  and  Opposers  of  a  Bill  for  the 
Charter  of  a  Railway. 

1.  English  cases  numerous.  I  2-5.  Lord  Eldon's  opinion,  in  case  qfVaux- 

hall  Bridge  Co. 

§7.  1.  The  cases  in  the  English  books  upon  the  subject  of 
contracts  between  the  promoters  of  railway  projects  in  parliament 
and  those  who  have  counter  interests,  and  who  are  ready  to  per- 
sist in  opposition  to  such  projects  unless  they  can  secure  some 
compromise  with  the  promoters,  are  considerably  numerous,  and 
involve  a  question  of  no  inconsiderable  importance.  We  shall 
therefore  examine  them  somewhat  in  detail. 

2.  One  of  the  earliest  cases  upon  this  subject 1  was  decided  by 
the  Lord  Chancellor,  Cottenham,  upon  full  argument,  and  great 
consideration,  as  early  as  1836.  But  as  this  case  professes  to 
rest  mainly  upon  a  leading  opinion  of  Lord  Chancellor  Eldon? 
upon  a  somewhat  analogous  subject,  it  may  not  be  improper  here 
to  give  the  substance  of  that  decision. 

3.  The  application  to  parliament  for  the  plaintiffs'  company,  if 
granted,  it  was  conceded,  would  injuriously  affect  the  tolls  upon 
another  bridge  not  far  distant.  The  proprietors  of  this  bridge 
were  opposing  the  plaintiffs'  grant  before  the  parliamentary  com- 
mittee, with  a  view  to  secure  some  indemnity  against  such  loss,  to 
be  specially  provided  for  by  the  plaintiffs'  act,  upon  condition  that 
the  plaintiffs  should  open  their  bridge  for  the  public  travel.  The 
promoters  of  the  plaintiffs'  grant  and  the  proprietors  of  the  rival 
bridge  had  come  to  an  agreement  in  regard  to  the  extent  of  the 
indemnity,  and  upon  naming  it  to  the  committee,  with  a  view  to 
have  it  inserted  in  the  act,  one  member  of  the  committee  objected 
to  such  course,  as  calculated  to  sanction  improper  influences  upon 

s.  c.  17  Beav.  132;  Preston  v.  Liverpool  &  M.  Railway,  7  Eng.  L.  &  Eq.  124; 
8.  c.  1  Sim.  (N.  S.)  586  ;  Edwards  v.  Grand  Junction  Railway,  1  Mylne  &  Cr. 
650.  The  cases  in  support  of  this  general  proposition  are  very  numerous,  and 
will  be  more  fully  examined  in  the  next  section. 

1  Edwards  v.  The  Grand  Junction  Railway,  1  Mylne  &*Cr.  650. 

*  Vauxhall  Bridge  Co.  v.  The  Earl  of  Spencer,  Jacob,  64  (1821). 

[*17] 


20  PRELIMINARY    ASSOCIATIONS.  PART  I. 

public  legislation.  The  promoters  of  the  new  bridge  then  pro- 
posed to  the  proprietors  of  the  rival  one  to  give  them  security  for 
the  proposed  indemnity,  by  way  of  bond  with  surety  which  should 
quiet  their  opposition,  and  the  bill  pass.  This  was  acceded  to  and 
the  securities  given,  and  the  bill  passed  accordingly.  The  opinion 
*of  Lord  Eldon  is  an  affirmance  of  the  decision  of  the  Vice-Chan- 
cellor,  retaining  the  bill  till  the  matter  should  be  tried  at  law.3 
But  the  intimations  of  the  Chancellor  indicate  certainly  that  he 
regarded  the  contract  as  perfectly  valid,  and  the  bill  was  after- 
wards dismissed  by  consent.  Lord  Eldon  said:  "In  the  view  I 
take  of  the  case,  it  will  not  be  an  obstacle  to  the  plaintiffs  that 
they  do  not  come  with  clean  hands,  for  it  is  settled,  that  if  a  trans- 
action be  objectionable,  on  grounds  of  public  policy,  the  parties  to 
it  may  be  relieved  ;  the  relief  not  being  given  for  their  sake,  but 
for  the  sake  of  the  public.  Thus  it  is  in  the  case  of  marriage  brocage 
bonds.  The  principle  was  much  discussed  in  the  case  of  Neville 
v.  Wilkinson,4  where  Mr.  Neville  being  about  to  marry,  inquiry 
was  made  by  the  lady's  father  to  what  extent  he  was  indebted. 
Wilkinson,  who  was  applied  to  at  the  desire  of  Neville,  concealed 
a  demand  which  he  had  against  him ;  after  the  marriage  he 
attempted  to  recover  it,  and  a  bill  was  filed  to  restrain  him.  I 
remember  arguing  it  with  obstinacy,  but  Lord  Thurloiv  thought 
that,  having  made  a  misrepresentation,  a  court  of  equity  must 
hold  him  to  it,  and  that,  although  the  plaintiff  was  a  particeps 
crimlnis  ;  so  it  was  held  in  the  case  of  Shirley  .v.  Ferrers,5  in  the 
Exchequer. 

4.  "  It  is  argued  that  this  was  a  fraud  upon  the  legislature, 
but  I  think  it  would  be  going  a  great  way  to  say  so,  for  non 
constat,  if  it  had  been  pushed  to  the  extent  of  taking  the  opinion 
of  the  house,  that  it  might  not  have  passed  the  bill  in  its  former 
shape.  It  cannot  be  said  that  the  agreement  is  contrary  to  legis- 
lative policy,  because  one  member  of  the  committee  makes  an 
objection,  which  is  not  sanctioned  or  known  by  the  house  at  large. 
Indeed,  such  things  are  constantly  done,  and  with  the  knowledge 
of  the  house ;  for  they  are  in  the  habit  of  saying,  with  respect  to 
these  private  acts,  that  though  they  will  not  of  themselves  pass 
them  into  laws,  yet  they  will  if  the  parties  can  agree  ;  and  matters 

3  s.  c.  2  ^lad.  356.  *  1  Br.  C.  C.  543. 

"  Cited  11  Vesey,  536. 

[•18] 


§  7.  CONTRACTS    BETWEEN    PROMOTERS   AND    OPPOSERS.  21 

sometimes  are  permitted  to  stand  over  to  give  an  opportunity  of 
coming  to  a  settlement. 

5.  "  It  is  then  said,  that  the  money  was  to  be  paid  ont  of  the 
funds  of  the  Vauxhall  Bridge  Company,  which  by  the  act  were 
devoted  to  other  purposes.  The  proprietors  of  Battersea  Bridge, 
however,  say  that  they  have  nothing  to  do  with  the  funds  of  the 
*  company;  that  they  have  contracted  with  a  number  of  inde- 
pendent persons,  to  whom  they  look  for  the  payment  of  the  bonds  ; 
and  if  the  obligors  agree  with  the  company  to  pay  the  bonds  with 
their  money,  what  have  the  obligees  to  do  with  that  unless  by  ante- 
cedent contract  ?  They  had  no  demand  in  law  or  equity  against 
the  company.  If,  then,  the  Vauxhall  proprietors  choose  to  sanc- 
tion what  the  legislature  has  not  directed,  namely,  the  indemnify- 
ing the  persons  who  have  become  obligors  in  the  bonds,  that  is  one 
thing ;  if  they  have  not,  then  the  individual  officers  who  have  paid 
the  money  over  in  discharge  of  the  bonds  ought  not  to  have  paid  it, 
and  may  now  be  called  on  to  pay  it  back ;  as  between  them  and 
the  company,  the  money  must  be  considered  as  being  still  in  their 
hands.  If  the  transaction  is  to  be  considered  merely  as  between 
the  obligors  and  the  obligees,  the  latter  not  refusing  the  money 
from  whatever  hands  it  came,  but  not  entangling  themselves  in  any 
contracts  between  the  obligors  and  the  company,  then  the  obligees 
would  not  be  affected  by  those  contracts.  But  if  so,  still  the  case 
depends  upon  the  validity  of  the  bonds ;  for  I  think  the  Vauxhall 
Bridge  Company  may  with  propriety  say,  if  the  money  was  paid  in 
consequence  of  an  arrangement  for  the  discharge  of  the  bonds,  and 
if  the  bonds  were  bad,  that  then  it  may  be  called  back.  When  the 
cause  was  heard  by  the  Vice-Chancellor,  he  did  that  which  he  was 
not  bound  to  do  ;  for  he  certainly  had  jurisdiction,  and  might  have 
decided  upon  the  validity  of  the  bonds.  But  he  directed  that  to 
be  tried  at  law,  where  all  the  objections  may  be  raised  upon  the 
pleadings  in  the  same  manner  as  here ;  and  considering  that  in 
matters  of  this  nature,  both  courts  of  law  and  equity  have  jurisdic- 
tion exercised  upon  the  same  principles,  I  do  not  see  any  occasion 

to  vary  the  decree." 

[*19] 


PRELIMINARY   ASSOCIATIONS.  PARTI. 

SECTION     VII. 
of  the  Promoter*  enforced  in  Equity. 

1-3.    Case  of  Edwards  v.  Grand  Junction  Raihcay. 

§  8.  1.  Edwards  v.  The  Grand  Junction  Railway,1  is  an  appli- 
cation to  a  court  of  equity  to  enforce  such  a  contract  against  a 
railway  company,  whose  charter  was  obtained  by  means  of  the 
quieting  opposition  in  parliament,  in  conformity  to  the  contract. 
*  The  trustees  of  a  turnpike  road  were  opposing  in  parliament  the 
grant  to  the  defendants,  unless  their  rights  were  guarantied  in 
such  grant.  The  promoters  of  defendants'  charter,  and  the  trustees 
of  the  turnpike  road,  came  to  an  agreement  in  regard  to  the  proper 
indemnity  to  be  inserted  in  the  act,  but  to  save  delay  it  was  secured 
by  way  of  contract,  on  the  part  of  the  promoters,  providing  for  a 
renewal  of  the  covenants,  on  the  part  of  the  company,  in  a  brief 
time  specified,  after  it  should  go  into  operation.  The  controversy 
in  the  present  case  was  with  reference  to  the  width  of  a  bridge,  by 
which  the  railway  proposed  to  convey  the  turnpike  road  over  their 
track.  The  contract  stipulated  that  such  viaducts  should  be  of  the 
same  width  as  the  road  at  that  point,  which  was  fifty  feet.  The 
charter  only  required  them  to  be  of  the  width  of  fifteen  feet,  and 
the  company  having  declined  to  assume  the  contract  of  the  promot- 
ers, were  proceeding  to  build  the  bridges  thirty  feet  wide  only. 
The  bill  prayed  an  injunction,  which  was  granted  by  the  Vice- 
Chancellor,  and  confirmed  by  the  Chancellor,  who  held  that  an 
agreement  to  withdraw  or  withhold  opposition  to  a  bill  in  parliament 
is  not  illegal ;  and  a  court  of  equity  will  enforce  a  contract  founded 
upon  such  a  consideration  ;  and  that  an  incorporated  company  will 
be  bound  by  the  agreement  of  its  individual  members,  acting, 
before  incorporation,  on  its  behalf,  if  the  company  had  received 
the  full  benefit  of  the  consideration,  for  which  the  agreement  stipu- 
lated, in  its  behalf.  The  opinion  of  the  Lord  Chancellor  will  best 
Bhow  the  grounds  of  the  decision.  "But  then  the  railway  com- 
pany contend  that  they,  being  now  a  corporation,  are  not  bound 
by  any  thing  which  may  have  passed,  or  by  any  contract  which 

1   1  My.  &  Cr.  650. 

[*20] 


§8.  CONTRACTS  ENFORCED  IN  EQUITY.  23 

may  have  been  entered  into  by  the  projectors  of  the  company 
before  their  actual  incorporation. 

2.  "  If  this  proposition  could  be  supported,  it  would  be  of  ex- 
tensive consequence  at  this  time,  when  so  much  property  becomes 
every  year  subjected  to  the  power  of  the  many  incorporated  com- 
panies. The  objection  rests  upon  grounds  purely  technical,  and 
those  applicable  only  to  actions  at  law.  Jt  is  said  that  the  company 
cannot  be  sued  upon  this  contract,  and  that  Moss  entered  into  a 
contract,  in  his  own  name,  to  get  the  company,  when  incorporated, 
to  enter  into  the  proposed  contract.  It  cannot  be  denied,  however, 
that  the  act  of  Moss  was  the  act  of  the  projectors  of  the  railway ; 
it  is,  therefore,  the  agreement  of  the  parties  who  were  seeking  an 
act  of  incorporation,  that,  when  incorporated,  certain  things  should 
*  be  done  by  them.  But  the  question  is,  not  whether  there  be  any 
binding  contract  at  law,  but  whether  this  court  will  permit  the 
company  to  use  their  powers  under  the  act,  in  direct  opposition  to 
the  arrangement  made  with  the  trustees  prior  to  the  act,  upon  the 
faith  of  which  they  were  permitted  to  obtain  such  powers.  If  the 
company  and  the  projectors  cannot  be  identified,  still,  it  is  clear 
that  the  company  have  succeeded  to,  and  are  now  in  possession  of, 
all  that  the  projectors  had  before  ;  they  are  entitled  to  all  their 
rights,  and  subject  to  all  their  liabilities.  If  any  one  had  in- 
dividually projected  such  a  scheme,  and  in  prosecution  of  it  had 
entered  into  arrangements,  and  then  had  sold  and  resigned  all  his 
interest  in  it  to  another,  there  would  be  no  legal  obligation  between 
those  who  had  dealt  with  the  original  projector  and  such  purchaser  ; 
but  in  this  court  it  would  be  otherwise.  So  here  as  the  company 
stand  in  the  place  of  the  projectors,  they  cannot  repudiate  any 
arrangements  into  which  such  projectors  had  entered.  They  can- 
not exercise  the  powers  given  by  parliament  to  such  projectors,  in 
their  corporate  capacity,  and  at  the  same  time  refuse  to  comply 
with  those  terms,  upon  the  faith  of  which  all  opposition  to  their 
obtaining  such  powers  was  withheld.  The  case  of  The  East  Lon- 
don Water  Works  Company  v.  Bailey,2  was  cited  to  prove  that, 
save  in  certain  excepted  cases,  the  agent  of  a  corporation  must, 
in  order  to  bind  the  corporation,  be  authorized  by  a  power  of 
attorney  ;  but  it  does  not  therefore  follow  that  corporations  are 
not  to  be  affected  by  equities,  whether  created  by  contract  or 
otherwise,    affecting  those  to  whose  position  they  succeed,  and 

2  -4  Bins-  283. 

[*21] 


24  PRELIMINARY    ASSOCIATIONS.  PARTI. 

affecting  rights  and  property  over  which  they  claim  to  exercise 
control.  What  right  have  the  company  to  meddle  with  the  road  at 
all?  The  powers  under  the  act  give  them  the  right ;  but  before 
that  right  was  so  conferred,  it  had  been  agreed  that  the  right 
should  only  be  used  in  a  particular  manner.  Can  the  company 
exercise  the  right  without  regard  to  such  an  agreement  ?  lam 
clearly  of  opinion  that  they  cannot ;  and  having  before  expressed 
my  opinion  that  the  contract  is  sufficiently  proved,  it  follows  that  the 
injunction  granted  by  the  Vice-Chancellor  is  in  my  opinion  proper, 
and  thai  this  motion  to  dissolve  it  must  be  refused  with  costs." 

3.  *4  The  case  of  The  Vauxhall  Bridge  Company  v.  Earl  Spen- 
cer,3 was  cited  for  the  trustees ;  and  it  certainly  is  a  strong 
authority  in  favor  of  their  *  claim  ;  Lord  Mdon  having  in  that 
case  expressed  an  opinion,  that  the  withdrawing  opposition  to  a 
bill  in  parliament  might  be  a  good  consideration  for  a  contract, 
and  having  recognized  the  right  of  an  incorporated  company  to 
connect  itself  with  a  contract  made  by  the  projectors  of  the  com- 
pany, before  the  act  of  incorporation.  On  the  other  hand  Dance  v. 
Girdler,4  was  cited  for  the  railway  company  ;  but  that  was  an  attempt 
to  make  a  surety  liable  beyond  his  contract ;  and  Sir  James  Mans- 
field, in  his  judgment  in  that  case,  relied  much  upon  the  want  of  iden- 
tity between  the  society  with  whom  the  contract  was  made  and  the 
corporation  ;  and  the  question  there  was  as  to  a  legal  liability,  not 
as  to  an  equitable  right.  It  was  contended  for  the  railway  company 
that  to  enforce  this  equity  would  be  unjust  towards  the  share- 
holders of  the  company  who  had  no  notice  of  the  arrangement. 
To  this  two  obvious  answers  may  be  made  :  first,  that  the  court  can- 
not recognize  any  party  interested  in  the  corporation,  but  must 
look  to  the  rights  and  liabilities  of  the  corporation  itself ;  and, 
secondly,  that  there  is  nothing  in  the  effect  of  the  injunction  incon- 
sistent with  the  provisions  of  the  act ;  for  although  the  act  provides 
that  bridges  shall  not  be  less  than  fifteen  feet  in  width,  it  does  not 
provide  that  they  shall  not  be  made  wider.  The  company  might 
under  this  act  clearly  agree  that  this  or  any  other  bridge  should 
be  fifty  feet  wide." 

•1  2  Mad.  356,  Jac.  64  (4  Cond.  Cha.  Rep.  28). 
4  1  Bos.  &  Pull.  N.  R.  34. 
[*22J 


§  9.  CONTRACTS    OP   PROMOTERS   BIND   THE   COMPANY.  25 

SECTION     VIII. 

Contracts  of  the  Promoters  binding  upon  the  Company  at  Law. 
1-3.   Case  of  Howden  v.  Simpson. 

§9.  1.  We  have  next  in  order  of  time  the  important  case  of 
Simpson  v.  Lord  Howden,1  before  the  Master  of  the  Rolls,  and  the 
Lord  Chancellor  on  appeal,  where  it  is  held,  that  equity  will  not 
interfere  to  decree  the  surrender  of  an  illegal  contract,  where  the 
illegality  appears  upon  the  face  of  the  contract,  the  remedy  at  law 
being  adequate.  We  have  then  the  same  case,  at  law,  before  the 
Queen's  Bench,2  and  decided,  on  full  argument,  where  it  is  held, 
that  a  contract  to  pay  Lord  Howden  .£5,000,  in  consideration  of 
*  bis  withdrawing  opposition  to  a  bill  for  incorporating  "  The  York 
&  North  Midland  Railway  Company,"  he  being  a  peer  in  par- 
liament, and  owning  estates  in  the  vicinity  of  the  proposed  line, 
was  illegal,  being  a  fraud  upon  the  legislature.  This  decision  was 
subsequently  reversed  in  the  Exchequer  Chamber.3  The  case  be- 
ing the  leading  case  upon  the  subject,  at  law  certainly,  may  require 
a  more  extended  statement.  The  agreement  under  seal,  between 
the  plaintiff  and  defendant  (the  case  now  standing,  Howden  v. 
Simpson),  recited  that  a  company  had  been  formed  for  making  a 
railway  ;  that  defendants  were  proprietors  ;  that  a  bill  had  been 
introduced  into  parliament,  according  to  which  the  line  would  pass 

1  1  Railway  Cases,  326  (1837)  ;   1  Keen,  583  ;  3  Mylne  &  Cr.  97. 

2  10  Ad.  &  Ellis,  793. 

3  The  case  was  reversed  mainly  on  the  ground  that  the  plea  did  not  allege 
that  the  parties,  at  the.  time  of  entering  into  the  contract,  intended  to  keep  it 
secret  from  the  legislature.  10  Ad.  &  Ellis,  793;  1  Railw.  C.  347.  But  the 
Exchequer  Chamber  held, that  the  agreement  on  the  face  of  it  was  valid,  and  that 
the  plaintiff  was  not  bound  to  communicate  to  the  legislature  the  bargain  he  had 
made  with  the  company,  and  that  a  member  of  the  legislature  could  make  any 
terms  for  the  sale  of  his  land,  and  compensation  for  injury  to  his  comforts  and 
property,  which  it  is  lawful  for  a  private  individual  to  make.  The  judgment  of 
the  Exchequer  Chamber  was  affirmed  in  the  House  of  Lords,  on  full  argument, 
before  the  Chancellor,  Lord  Lyndhurst,  Lord  Brougham,  and  in  the  presence  of 
the- two  chief  justices,  and  ten  of  the  judges.  3  Railw.  Cas.  294;  s.  c.  9  CI.  & 
Fin.  61.  But  Lord  Campbell  adhered  to  his  former  opinion  that  the  contract 
must  have  been  held  illegal,  if  it  had  appeared  that  it  was  an  element  in  the  con- 
tract that  it  should  be  kept  secret,  and  not  communicated  to  parliament. 

[*23] 


26  PRELIMINARY    ASSOCIATIONS.  PARTI. 

through  plaintiff's  estates  and  near  his  mansion,  and  that  he  was 
a  dissentient,  and  opposed  the  passing  of  the  bill ;  that  defendants 
had  proposed  that, if  he  would  withdraw  his  opposition,  and  assent 
to  the  railway,  they  would  endeavor  to  deviate  the  proposed  line: 
and  plaintiff  agreed  that,  on  condition  of  the  stipulations  in  the 
agreement  being  performed,  he  did  thereby  withdraw  his  oppo- 
sition and  give  his  assent;  and  defendants  covenanted  that  in  case 
the  then  hill  should  be  passed  in  the  then  session,  they  would,  in 
six  months  after  it  received  the  royal  assent,  pay  plaintiff  £5,000 
as  compensation  for  the  damage  which  his  residence  and  estates 
would  sustain  from  the  railway  passing  according  to  the  deviated 
line,  exehisive  of  and  without  prejudice  to  further  compensation  to 
plaintiff,  in  the  event  of  the  deviated  line  not  being  ultimately 
adopted  and  without  prejudice  to  such  further  compensation  for 
any  damage  as  in  the  agreement  after  mentioned. 

2.  Plaintiff  declared  in  debt,  and  averred  that  he  withdrew  his 
opposition  to  the  bill,  which  passed  into  a  law  in  the  then  session, 
*  that  six  months  had  since  elapsed,  but  that  defendants  had  not 
paid  the  £5,000. 

3.  Plea,  that  the  railway,  at  the  time  of  making  the  agreement, 
and  according  to  the  act,  was  intended  to  pass  through  the  lands 
of  divers  individuals ;  that  the  agreement  was  made  privately  and 
secretly  by  the  parties  thereto,  without  the  consent  or  knowledge 
of  the  said  individuals,  and  was  concealed  from  them  continually 
until  the  act  was  passed,  and  was  not  disclosed  to,  or  known  in 
parliament,  and  was  concealed  from  the  legislature  during  the 
passing  of  the  act;  and  that  plaintiff  at  the  time  of  passing  the 
act  and  still,  was  a  peer  of  parliament. 


SECTION    IX. 

What  Contracts  between  the  Promoters  of  Railways  and  Others  will 
be  enforced,  either  in  Law  or  Equity,  against  the  Contracting 
Parties  <>r  the   Company. 

1.   Contract  to  take  land  of  opposing  party.     |  2.    Contract  prejudicial  to  the  public. 

§  10.  1.  Since  the  decision  of  Howden  v.  Simpson,  in  the  Ex- 
chequer Chamber,  and  the  House  of  Lords  (1842),  the  English 
[•24] 


§  11.  CONTRACTS   OF   PROMOTERS   ENFORCED.  27 

courts  seem  to  have  acquiesced  in  the  principles  there  established, 
until  a  very  recent  period.  The  validity  of  such  a  contract  is 
recognized,  in  regard  to  the  company  purchasing  the  interest  of 
the  lessee  of  lands  near  the  line  of  the  proposed  railway.1  And 
where  the  promoters  of  one  railway  entered  into  an  agreement  with 
a  land-owner  on  the  proposed  line  to  take  his  land  at  a  specified 
price  (20,0002.),  by  which  he  was  induced  to  withdraw  opposition  ; 
and  the  promoters  of  a  rival  line,  who  proposed  also  to  pass 
through  the  same  land,  had  petitioned  for  a  charter,  and  the  merits 
of  the  two  projects  were,  under  the  sanction  of  the  committee  of 
the  House  of  Commons,  referred  to  arbitration,  and  the  solicitors 
of  the  two  bills  agreed,  that  the  adopted  line  should  take  the  en- 
gagements entered  into  with  the  land-owners,  by  the  rejected  line, 
it  was  held,  that  the  second  company  prevailing,  were  bound,  as  a 
condition  of  entering  upon  the  lands  of  plaintiff,  to  fulfil  the  terms 
of  the  agreement  of  the  first  company.2 

*  2.  And  where  one  railway  company  was  prohibited  from  open- 
ing their  line  for  traffic,  until  they  had  built  a  branch  railway, 
connecting  their  line  with  that  of  another  company,  it  was  held, 
that  a  court  of  equity  was  bound  to  enforce  the  prohibition,  on 
motion  of  the  other  company,  though  the  probable  result  would  be, 
to  cause  inconvenience  to  the  public,  and  not  to  benefit  the  other 
company.3 


SECTION    X. 
Courts  of  Equity  will  enforce  Contracts  with  the  Promoters. 

1.  Bona  fide  contract   not   evading  statute,  i  n.  3.  Statement  of  English  cases, 
valid. 

§  11.  1.  The  English  courts  of  equity  do  not  hesitate  to  restrain 
railways  from  proceeding  to  take  land  under  their  compulsory 
powers,  where  the  proprietor  of  the  estates  had  surceased  opposi- 
tion to  the  bill,  by  an  arrangement  with  the  projectors,  by  which 
they  stipulated  that  the  company  should  pay  a  certain  sum,  which 

1  Doo  v.  The  London  and  Croydon  Railway,  1  Railw.  C.  257  ;  s.  c.  3  Jur.  258. 

2  Stanley  v.  The  Chester  and  Birkenhead  Railw.,  1  Railw.  C.  58  ;  9  Simons,  264. 
8  Cromford  and  High  P.  Railway  v.  Stockport,  D.  &  W.  Bridge  Railway,  24 

Beav.  74;  s.  c.  29  Law  Times,  245. 

[*25] 


28  PIIKLIMINARY    ASSOCIATIONS.  PARTI. 

it  had  declined  to  do.  This  was  done  notwithstanding  the  pro- 
prietor  was  a  peer  of  parliament,  and  notwithstandingvthe  tender 
of  an  undertaking,  on  the  part  of  the  company,  not  to  enter  upon 
the  land  until  the  further  order  of  the  court,  and  notwithstanding 
the  time,  within  which  the  company,  by  their  charter,  were  author- 
ized to  take  land  would  have  expired,  before  the  hearing  of  the 
cause.1  And  although  this  case  is  questioned  by  some  writers,2 
the  Learned  Lord  Chancellor  St.  Leonards  said  the  cases  establish 
the  proposition,  that  a  bona  fide  contract  of  this  sort,  not  evad- 
ing- the  act  of  parliament,  but  enabling  the  company  to  assist  its 
views,  and  carry  the  act  into  effect,  was  valid,  without  reference  to 
the  reasonableness  of  the  amount  agreed  to  be  paid.3 

1  Lord  Petre  ».  Eastern  Counties  Railway  Co.,  1  Railw.  C.  462. 

1  Shelford,  -100. 

3  Hawkes  v.  Eastern  Counties  Railway  Co.,  1  De  G.  M.  &  G.  737  ;  s.  c. 
15  Eng.  L.  &  Eq.  358;  s.  c.  before  the  Vice-Chancellor,  3  De  G.  &  S.  314; 
8.  c.  4  Eng.  L.  &  Eq.  91,  where  it  is  considered  that  a  railway  company, 
having  agreed  to  purchase  an  estate,  although  moved  to  do  so  for  the  quiet- 
ing of  opposition  to  a  bill  before  parliament  to  enable  them  to  extend  a  branch 
in  a  certain  direction,  which  was  subsequently  abandoned,  were  nevertheless 
bound  to  perforin  their  agreement  with  the  owner  of  the  estate.  See  also 
Shelford  on  Railways.  400.  The  case  of  Hawkes  v.  The  Eastern  Counties 
Railway  < 'o.  came  before  the  Lord  Chancellor,  St.  Leonards,  on  appeal  from 
the  Vice-Chancellor  in  1852,  where  the  whole  subject  of  the  legality  and  bind- 
ing character  of  this  class  of  contracts  is  learnedly  discussed,  as  well  as  the 
propriety  of  decreeing  specific  performances,  and  most  of  the  cases  elaborately 
and  learnedly  reviewed  and  compared.  The  conclusion  to  which  that  eminent 
judge-  arrives  is,  that  even  in  a  case  where  the  company  were  not  able  to  carry 
their  project  into  full  effect,  but  had  abandoned  it,  they  were  nevertheless  bound 
specifically  to  perform  contracts  of  this  kind,  and  that  it  was  no  objection  to 
decrcen,-  specific  performance,  that  it  would  involve  the  necessity  of  paying  the 
price  of  the  land  out  of  the  general  funds  of  the  company,  which  had  been  raised 
for  provisional  purposes  merely,  and  with  no  view  of  ultimately  purchasing  land 
and  building  the  road;  and  that  the  land  could  be  of  no  use  to  the  company 
under  present  circumstances.  One  can  scarcely  fail  to  perceive  in  this  case,  that 
a  principle,  perhaps  sound  and  just  under  some  circumstances,  is  here  pushed 
quite  to  its  extreme  verge.  Damages  at  law  might  have  been  the  more  proper 
disposition  of  all  interests  concerned. 

The  opinion  of  the  Lord  Chancellor  is  a  masterly  exposition  of  the  view  which 
he  adopts.  After  disposing  of  the  preliminary  questions  he  proceeds:  "  In  the 
case  ol  Webb  V.  The  Direct  London  and  Portsmouth  Railway,  1  De  G.  M.  &  G. 
52]  :  8.  C.  9  Eng.  L.  <V  Eq.  2i'J,  there  was  originally  a  decree  for  specific  perform- 
ance, and  alter  the  decision  in  this  case  was  made,  —  the  court  having  relied  on 
that  case,  —  that  decision  was  reversed.  Now  it  appears  to  me  that  that  case  was 
reversed  upon  the  uncertainty  of  the  contract;  and  if  it  was  reversed  upon  any 

[*25J 


§  12.  CONTRACTS    ENFORCED    IF   RAILWAY    ABANDONED.  29 

*SECTION    XI. 

Such,  Contracts  enforced  where  the  Hallway  is  abandoned. 

1.    Where  a  certain  sum  is  to  be  paid  to  quiet  I  2.  Merely  provisional  contracts   not   always 
opposition.  enforced. 

§  12.  1.  It  has  sometimes  been  held,  that  an  absolute  agree- 
ment made,  by  the  promoters  of  a  railway,  to  pay  one  a  certain 

other  ground,  I  should  have  required  further  time  before  I  could  accede  to  the 
doctrine  that  a  company  entering  into  such  a  contract  as  this  is,  could,  upon  any 
grounds  of  supposed  illegality,  get  rid  of  the  contract.  If,  as  in  some  of  these 
cases,  several  of  which  have  been  cited,  the  contract  is  so  worded  that  it  really 
depends  upon  this,  that  the  company  are  not  to  pay  unless  they  require  the  land  ; 
that  is,  they  are  to  pay  when  they  take  the  land,  which  assumes  that  they  are  not  to 
pay  unless  they  do  take  the  land,  that  may  be  considered  a  conditional  contract.  I 
have  nothing  to  say  to  such  cases  ;  but  where,  as  in  this  case,  it  is  an  absolute  and 
unqualified  contract  to  take  the  land,  I  should  certainly  hold  that  no  subsequent 
conduct  on  the  part  of  the  company  could  relieve  them  from  the  obligation  they 
were  bound  by  at  the  time  they  entered  into  it.  The  act  of  parliament  having 
passed,  this  was  as  good  a  contract  as  a  man  ever  entered  into.  I  must  look  at  it 
at  the  time  when  it  was  executed,  at  all  events,  at  the  time  the  act  passed.  It 
contemplated  the  act  passing,  and  the  act  did  pass  exactly  in  the  terms  pointed  out 
in  the  agreement.  Well,  then,  it  is  a  valid  contract.  Suppose,  as  was  observed 
in  argument  very  properly,  suppose  this  agreement  had  been  entered  into  after 
the  passing  of  the  act,  would  any  man  at  the  bar  say  that  was  a  contract  not  to 
be  executed  ?  Looking  at  the  authorities  which  have  concluded  that  question, 
why  should  it  not  be  as  binding,  being  entered  into  before  the  act  passed,  as  it 
must  be  admitted  it  would  have  been  if  executed  immediately  after  the  act 
passed  ?  There  is  no  magic  in  these  things.  The  good  faith,  the  truth,  and  the 
honesty  of  the  transaction  are  to  be  looked  at,  there  is  no  rule  of  law  in  it.  If, 
therefore,  Webb  v.  The  Direct  London  and  Portsmouth  Railway  Company  is 
considered  to  decide  any  thing  adverse  to  the  decision  in  this  case,  I  should 
support  the  decision  of  .this  case,  as  far  as  my  authority  went.  With  great 
deference  to  others,  I  should  support  this  decision  certainly  at  the  expense  of 
the  contrary  view,  that  is,  contrary  to  the  view  taken  on  that  appeal,  if  that  were 
to  be  so ;  but  I  apprehend  it  turned  on  the  uncertainty  of  the  contract.  In 
Lord  James  Stuart  v.  The  London  and  Northwestern  Railway  Company,  the 
Master  of  the  Rolls  there  decreed  a  specific  performance,  upon  the  authority  of 
Webb  v.  The  Direct  London  and  Portsmouth  Railway  Company,  before  it  was 
reversed.  It  was  said  that  the  reversal  of  that  therefore  displaced  his  authority. 
That  also  was  reversed.  There  again  were  two  questions :  first,  a  question 
whether  there  was  any  concluded  agreement,  any  binding  agreement,  any  thing 
amounting  to  a  positive  contract ;    and    next,  there  was   great   delay.     Those 

[*26] 


30  PRELIMINARY    ASSOCIATIONS.  PARTI. 

*  sum  to  quiet  opposition,  is  valid,  notwithstanding  the  contem- 
plated  work   is  never  carried  forward,  and  the  injury  to  the  op- 

-  w<  re  relied  upon,  and  I  can  only  repeat  that  I  am  not  saying  either  of  those 
decisions  was  not  a  proper  decision,  and  I  am  not  called  upon  to  say  that;  but  I 
if  thej  are  to  be  considered  in  opposition  to  a  specific  performance,  in  a  case 
like  that  before  me,  that  I  should  totally  disagree  with  them.  It  is  a  new  view 
of  the  doctrine  of  this  court,  and  it  is  a  view  which  could  not  be  supported  con- 
sistently with  the  many  authorities  which  exist  on  this  subject. 

"  Then  it  i-  argued  with  great  force  and  insisted  upon  that  there  is  illegality 
here,  because  the  company  is  applying  its  [funds  to  purposes  not  authorized  by 
the  act  of  parliament.  Now,  for  that  several  cases  were  quoted.  MacGregor  v. 
The  Dover  and  Deal  Railway  Company,  18  Q.  B.  618;  s.  c.  17  Jur.  21;  s.  c. 
L6  Eng.  L.  &  Eq.  180;  East  Anglian  Railway  Company  v.  Eastern  Counties 
Railway.  LI  C.  B.  775 ;  s.  c.  21  Law  J.  Rep.  (N.  S.)  C.  P.  23 ;  s.  c.  7  Eng.  L. 
&  Eq.  505  ;  and  the  case  of  Bagshawe  v.  The  Eastern  Union  Railway  Company, 
2  Hall  &  Tw.  201  ;  s.  c.  2  Mac.  &  Gor.  389.  Those  were  all  cases  in  which 
the  company  were  really  going  beyond  their  powers ;  and  one  cannot  but  lament 
to  see  great  companies  like  these,  with  an  attorney  always  at  their  command, 
with  every  means  of  consulting  counsel  daily  if  they  think  proper,  and  which 
they  resort  to  sufficiently,  and  with  enormous  capital,  entering  into  a  contract, 
with  a  full  knowledge  of  all  their  powers,  and  with  legal  advice  constantly  at 
command,  turning  round  upon  the  party  with  whom  they  have  contracted,  and 
endeavoring  to  evade  the  contract  upon  the  ground  that  the  contract  they  entered 
into  is  beyond  their  powers  and  absolutely  illegal  on  the  face  of  it.  One  can- 
not but  regret  that  these  companies  should  resort  to  so  unseemly  a  defence  in 
courts  of  justice.  I  do  trust  we  shall  not  hear  of  many  more  of  these  cases,  but 
that  these  companies  will  take  care  that  in  entering  into  contracts  with  indi- 
viduals who  are  not  so  well  protected,  they  do  not  go  beyond  their  powers,  and 
one  cannot  but  feel  that  they  do  not  enter  into  a  contract  of  this  sort,  if  it  be 
illegal,  without  being  perfectly  aware  of  its  illegality.  Nothing  can  be  more 
indecent  than  for  a  <:roat  company  to  come  into  a  court  of  justice,  and  to  say 
that  a  contract  —  a  solemn  contract  which  they  have  entered  into  —  is  void  on 
the  ground  of  its  not  being  within  their  powers,  not  from  any  subsequent  acci- 
dent, not  from  any  mistake  or  misapprehension,  but  because  they  thought  fit 
to  enter  into  it  and  meant  to  have  the  benefit  of  it,  if  it  turned  out  for  their  ben- 
efit, and  to  take  advantage  of  the  illegality  in  case  the  contract  should  prove 
onerous  and  they  should  desire  to  get  rid  of  it.  Such  highly  dishonorable  con- 
duct I  trust  we  shall  not  often  see  in  courts  of  justice. 

'•  Now,  these  eases  last  referred  to,  it  is  not  proper  for  me  to  find  fault  with. 
They  are  cases  in  which  it  appears  that  the  company  did  enter  into  engagements 

irly  beyond  their  powers,  and  the  parties  contracting  with  them  must  be 
supposed  to  have  known  that.  It  has  been  decided  that  they  cannot  be  enforced, 
and  I  have  nothing  to  say  against  those  decisions  ;  but  this  case  does  not  fall 
within  those  decisions.  There  is  nothing  that  has  been  stated  to  me  of  any  sort, 
or  kind,  excepting  this:  That  a  Mr.  Duncan,  in  part  of  his  evidence,  refers  to 
the  intention  of  the  parties  to  form  a  junction  with  the  Ambergate  line,  and  in 
that  way  going  right  through  the  plaintiff's  property,  they  being  unable  otherwise 

[•27] 


§  12.  CONTRACTS   ENFORCED    IP   RAILWAY   ABANDONED.  31 

poser,  *  which  the  contract  of  quietus  assumes,  is  never  sus- 
tained.1    But  such  a  contract  is  certainly  based  upon  a  principle 

to  get  at  the  point  which  they  proposed  to  get  at  by  the  curvilinear  diverging 
line,  which  parliament  rejected.  Then  they  say,  it  is  a  fraud  on  the  act  of 
parliament.  There  is  no  such  thing  in  the  contract, — no  such  thing  in  the 
answer.  This  court  has  not  permitted  any  evidence  to  be  given  on  a  point  of 
defence  that  was  not  raised  in  the  answer ;  because  if  it  had  been  raised, 
Mr.  Hawkes  could  have  shown  there  was  no  foundation  for  it.  I  believe  there 
is  no  foundation.  I  believe  that  the  company  had  in  view  that  they  might,  by 
this  short  cut  through  Mr.  Hawkes's  property,  get  to  a  certain  point ;  but 
Mr.  Hawkes  had  nothing  to  do  with  that.  The  act  provided  for  taking  this 
property  for  the  very  purpose  authorized  by  the  act  of  parliament  itself.  The 
cases,  therefore,  do  not  touch  this  question  at  all,  and,  consequently,  I  am  not 
embarrassed  by  their  authority. 

"Then  it  is  said  there  is  no  mutuality;  and,  therefore,  that  the  company 
could  not  enforce  it,  because  they  have  no  means  of  carrying  the  railway  on  ;  and 
that  involves  also  the  question  of  the  expiration  of  the  time.  I  have  already 
referred  to  authority  to  show  that  expiration  of  time  in  a  case  of  this  sort  amounts 
to  nothing,  where,  as  in  this  case,  it  is  the  fault  of  the  company  itself  that  the 
time  has  been  allowed  to  expire.  They  have  thought  proper  to  allow  time  to 
expire.  Their  conduct,  upon  this  correspondence,  admits  of  no  excuse.  With 
full  knowledge  of  all  they  intended  to  do,  they  are  told  the  deeds  are  ready  to 
be  examined  with  the-abstracts  ;  they  make  an  appointment  to  go  down,  without 
raising  a  word  of  complaint,  to  examine  the  abstracts  with  the  deeds.  They 
break  that  appointment.  They  make  no  other  appointment.  They  are  told  that 
the  vendor  has  vacated  the  possession  of  the  property,  and  that  it  is  at  their  dis- 
posal, and  that  he  has  sought  another  residence,  as  he  must  necessarily  have 
done,  and  then  they  serve  a  formal  notice,  telling  him  they  will  have  nothing  to 
do  with  the  contract ;  that  they  do  not  want  the  property,  and  do  not  mean  to 
make  tne  line.  What  has  mutuality  to  do  with  it  ?  There  are  many  cases  where 
the  court  has  not  looked  to  the  doctrine  of  mutuality  as  it  ought  to  have  done, 
and  has  inferred  a  contract  against  a  party  where  that  party  could  not  have 
sufficiently  enforced  a  contract  against  any  one  else.  Those  are  cases  of  great 
hardship  ;  but  here  I  must  look  at  this  contract  at  the  time  the  act  of  parliament 
was  passed,  and  at  the  time  it  was  entered  into.  Where,  then,  is  there  any  want 
of  mutuality?  Could  not  the  company,  within  an  hour  after  the  act  passed,  have 
enforced  the  contract  against  Mr.  Hawkes  ?  Nobody  disputes  or  doubts  it. 
Where,  then,  is  the  want  of  mutuality  ?  It  is  not  because  a  man,  subsequently  to 
the  contract,  chooses  to  introduce  impediments  to  the  performance  of  the  con- 
tract on  his  own  part,  but  it  is  where  it  is  impossible  to  do  that  which  he  had 
contracted  for;  and  he  cannot,  therefore,  turn  round  against  the  man  with  whom 
he  has  contracted,  and  throw  upon  that  man  the  loss.  Who  is  to  bear  the  loss 
in  this  case?  The  company  say  the  loss  is  to  fall  upon  Mr.  Hawkes.  Who 
is    to    blame?      The    company;    not    Mr.   Hawkes.      The    company,    therefore. 


Bland  v.  Crowley,  G  Railw.  C.  75(3 ;  s.  c.  6  Exch.  522. 

[*28] 


32  PRELIMINARY    ASSOCIATIONS.  PARTI. 

*  of  very  questionable  policy,  and  courts  would  more  incline  to 
give  tin1  contract,  when  consistent  with  the  words  used,  such  a 

modestly  desire,  in  consequence  of  their  own  act,  in  breaking  this  agreement 
as  they  have  dbne,  and  rejecting  the  line  after  they  h:ul  obtained  authority  to 
make  it,  throwing  up  the  line  and  endeavoring  to  repudiate  their  solemn  con- 
tract, that  the  whole  loss  and  burden  is  to  be  thrown  on  the  party  who  is  not  to 
blame.  Fortunately  the  law,  justice,  and  equity  of  the  case  are  agreed.  There 
is  nothing  to  prevent  my  enforcing  the  contract  in  the  case. 

"Then  certain  oilier  eases  were  cited,  as  showing  I  ought  not  to  interfere  to 
performance  of  the  contract.  Gage  v.  The  Newmarket  Railway  Com- 
pany, 18  Q.  B.  157  ;  B.  c.  21  Law  J.  Rep.  (N.  S.)  Q.  B.  398;  s.  c.  14  Eng.  L. 
&  Eq.  -r»7,  was  one.  That  seems  also  to  turn  on  the  conditional  agreement. 
There  was  an  agreement  there,  that  the  company,  before  they  entered  on  the  land 
which  they  might  require,  should  pay,  and  it  was  considered  there  was  no  abso- 
lute agreement  to  pay.  No  doubt,  the  Lord  Chief  Justice  said,  if  there  had  been 
a  covenant  to  pay,  or  a  covenant  to  pay  a  sum  as  a  sum  in  gross,  that  the  court 
would  have  treated  it  as  void.  The  case  was  not  before  the  court;  but  they 
evidently  considered  it  within  the  other  cases,  where  they  had  held  that  the  com- 
pany  could  not  bind  itself  beyond  its  powers.  It  required  great  consideration 
how  far  that  doctrine  should  be  carried.  I  dare  say  it  will  be  necessary  that  it 
Bhould  be  ultimately  carried  elsewhere  before  it  can  be  finally  decided.  It  is  a 
great  and  serious  question  how  far  these  companies  can  be  allowed  to  enter  into 
contracts  solemnly  under  their  seal,  and  then  turn  round,  upon  the  parties  and 
say  they  have  exceeded  their  powers,  and,  consequently,  will  not  perform  their 
contract.  Then  in  the  other  case  of  Gooday  v.  The  Colchester  and  Stour  Val- 
ley Railway  Company,  17  Beav.  132;  s.  c.  19  Law  Times,  334;  s.  c.  15  Eng. 
L.  &  Eq.  596,  there  was  no  agreement  binding  upon  the  company. 

"  I  can  find  no  authority  upon  the  subject  (and  I  have  looked  carefully 
through  every  thing  which  has  been  cited,  and  I  postponed  disposing  of  the  case 
in  order  that  I  might  have  that  opportunity)  to  shake  the  opinion  I  entertained 
when  the  argument  was  closed,  that  this  is  a  very  clear  case  for  specific  per- 
formance. I  am  very  glad  that  the  law  turns  out  to  be  consistent  with  the  equity 
of  the  ease;  and,  therefore,  I  dismiss  this  appeal,  and  with  costs." 

This  case  was  affirmed  in  the  House  of  Lords,  5  House  Lds.  331  ;  s.  c.  35 
Eng.  L.  (.V  Eq.  8,  and  elaborate  opinions  delivered,  by  the  Lord  Chancellor  Cran- 
worth,  Lord  Campbell,  and  Lord  St.  Leonards.  The  case  is  obviously  put  some- 
what upon  the  ground  of  the  peculiar  state  of  facts  involved.  1.  It  is  a  contract 
under  the  seal  of  an  existing  company,  and  not  the  contract  of  the  projectors  of 
a  contemplated  company  merely.  2.  Although  the  contract  had  respect  to  an 
extension  of  the  existing  line,  by  means  of  a  branch  line,  which,  as  to  the  exist- 
ing shareholders,  the  company  had  no  right  to  construct,  and  even  with  the  con- 
Bent  of  the  legislature  could  not  construct,  with  funds  of  the  existing  company, 
yet  nothing  of  this  seems  to  have  been  known  to  Mr.  Hawkes.  He  does  not 
seem  to  have  been  made  aware  of  any  purpose  of  the  company  to  do  any  act 
beyond  their  powers,  or  in  conflict  with  the  rights  of  the  shareholders. 

These  Beveral  points  are  thus  stated  in  the  notes  of  the  case:  — 

\\  here  an  act  creating  a  railway  company,  or  giving  new  powers  to  an  exist- 
[*2(J] 


§  12.  CONTRACTS    ENFORCED    IP    RAILWAY    ABANDONED.  33 

*  construction,  that  it  shall  be  the  purchase  of  a  pecuniary  inter- 
est, or  indemnification  for  a  pecuniary  loss,  which  are  legitimate 

ing  company,  authorizes  the  purchase  of  lands  for  extraordinary  purposes,  a 
person  who  agrees  to  sell  his  land  to  the  company  is  not  bound  to  see  that  it  is 
strictly  required  for  such  purposes  ;  if  he  does  not  know  of  any  intention  to  mis- 
apply the  funds  of  the  company,  but  acts  bona  fide  in  the  matter,  he  may  enforce 
performance  of  the  contract. 

Semble,  That  where  the  directors  of  a  railway  company,  wanting  part  of  a 
property,  purchase  more  of  it  than  is  required,  though  that  may  become  a  ques- 
tion between  them  and  the  shareholders,  they  cannot  on  that  account  avoid  the 
contract  with  the  seller. 

Promoters  of  a  company  to  make  a  line  of  railway,  or  persons  standing  in  a 
similar  situation,  as  directors  of  an  existing  company,  applying  to  parliament  for 
authority  to  make  a  new  line,  may  lawfully  enter  into  a  contract  for  land  that 
will  be  necessary  for  the  proposed  line  should  the  bill  pass,  and  when  it  has 
passed,  such  contract  will  be  valid,  and  may  be  enforced.  The  mere  want  of 
legal  power  to  make  the  contract  at  the  moment  of  entering  into  it,  will  not  affect 
its  validity  afterwards.  Secus,  where  the  act  itself  is  illegal,  and  parliament  is  to 
be  asked  to  legalize  it. 

Where  a  contract  for  the  purchase  of  land  is  made  by  the  projectors  of  a  pro- 
posed line  of  railway,  though  an  action  at  law  may  be  maintained  upon  the  con- 
tract, a  court  of  equity  will  not,  simply  on  that  account,  refuse  its  interference  to 
compel  specific  performance. 

Under  the  first  head,  the  following  suggestions  of  Lord  Chancellor  Cranworth 
are  of  interest:  "  A  railway  company  cannot  devote  any  part  of  its  funds  to  an 
object  not  within  the  scope  of  its  original  constitution,  how  beneficial  soever 
that  object  might  seem  likely  to  prove. 

"Thus  in  Colman  v.  The  Eastern  Counties  Railway  Company,  10  Beav.  1; 
4  Railw.  C.  513  ;  Lord  Langdale,  at  the  instance  of  a  shareholder,  restrained  the 
company  and  its  directors  from  applying  any  part  of  their  funds  in  assisting  a 
company  which  had  been  formed  for  establishing  a  steam  communication  between 
Harwich  and  the  northern  ports  of  Europe.  The  directors  of  the  railway  com- 
pany thought  that  such  an  application  of  a  part  of  their  funds  would  be  likely 
materially  to  promote  the  interests  of  their  shareholders,  by  encouraging  and  in- 
creasing the  traffic  on  their  line.  But  Lord  Langdale,  though  admitting  that 
such  an  expenditure  might  very  likely  conduce  to  the  interest  of  the  railway 
company,  yet  restrained  the  directors  by  injunction  from  so  applying  any  part 
of  their  funds,  on  the  ground  that  they  had  no  right  to  expend  the  money  of  the 
company  on  any  project  not  directly  within  the  terms  of  its  incorporation. 

"  In  Salomons  v.  Laing,  12  Beav.  339,  the  same  learned  judge  restrained  the 
directors  of  the  South  Coast  Railway  Company  from  applying  any  part  of 
the  funds  of  that  company  in  the  purchase  of  shares  of  another  company  (the 
Portsmouth),  by  which  purchase  the  defendants  hoped  to  benefit  the  company 
of  which  they  were  directors.  The  court  held  that  the  defendants  had  no  right 
to  deal  with  the  funds  in  a  manner  not  authorized  by  their  act. 

"  The  same  principle  was  recognized  and  acted  upon  by  Sir  James  Wigram 
and  Lord  Cottenham  in  Bagshawe  v.  The  Eastern  Union  Railway  ( lompany,  2 

3  [*30] 


34  PRELIMINARY    ASSOCIATIONS.  PARTI. 

•subjects  of  bargain   and  sale,  than  to  regard  it,  as  the  purchase 
of  good-will,  or  the  price  of  converting  ill-will  unto  favor,  which 

Mac.  a  (,.  389  ;  B.  C.  2  Hall  &  T.  201  ;  6  llailw.  C.  152.  There  the  legislature 
had  authorized  the  defendants  to  raise,  by  way  of  additional  shares,  two  sums  of 
,000  and  £100,000,  the  former  for  the  purpose  of  enabling  them  to  con- 
i  a  branch  line  to  Harwich,  and  the  latter  for  enabling  them  to  purchase 
and  complete  a  cross  line  to  Hadleigh.  The  plaintiff  had  purchased  scrip  certifi- 
cates for  Mian-  in  these  undertakings,  or  one  of  them,  on  which  all  calls  had  been 
paid,  and  be  .-taicd  by  his  bill,  that  the  directors,  though  the  whole  of  the  two 
sums.  £200,000  and  £100,000  had  been  raised,  yet  had  abandoned  the  intention 
instructing  tin-  Harwich  line,  and  were  about  to  apply  the  sums  so  raised 
to  the  completing  of  their  line  from  Ipswich  to  Norwich.  The  bill  prayed, 
amongst  other  things,  a  general  account  of  all  sums  so  applied,  that  the  directors 
might  1"'  decreed  personally  to  make  them  good,  and  for  an  injunction  to  restrain 
am  further  similar  application  of  any  part  of  the  said  two  sums  of  £200,000  and 
£100,000.  To  this  bill  there  was  a  general  demurrer,  but  it  was  overruled,  first 
by  Sir  James  Wigram,  and  afterwards,  on  appeal,  by  Lord  Cottenham;  the 
ground  of  the  decision  there,  as  in  the  other  cases,  being  that  the  directors  had 
no  right  to  expend  any  part  of  the  sums  raised  for  a  special  purpose  upon  any 
other  object  than  that  lor  which  they  were  so  raised. 

"In  all  these  cases,  the  discussion  was  raised  by  shareholders  calling  In  ques- 
tion the  misapplication  or  intended  misapplication  of  the  corporate  funds  by  the 
directors.  But  the  doctrine  has  been  acted  on  in  the  courts  of  common  law  to 
the  extent  of  holding  that  a  contract,  even  under  the  seal  of  a  company,  cannot 
in  general  be  enforced,  if  its  object  is  to  cause  the  corporate  property  to  be  di- 
verted to  purposes  not  within  the  scope  of  the  act  of  incorporation.  Thus,  in  the 
case  of  The  East  Anglian  Railway  Company  v.  The  Eastern  Counties  Railway 
Company.  11  C.  B.  S03  ;  s.  c.  7  Eng.  L.  &  Eq.  505,  the  Court  of  Common  Pleas, 
after  an  elaborate  argument,  held  that  no  action  could  be  maintained  against  the 
defendants  on  a  covenant  into  which  they  had  entered  for  payment  to  the  plain- 
tills  of  the  costs  incurred  in  applications  to  parliament,  made  at  the  instance  of 
the  defendants,  for  obtaining  from  the  legislature  powers  which  the  defendants 
considered  it  desirable  for  their  interests  that  the  plaintiffs  should  possess.  The 
Chief  Justice,  in  delivering  the  judgment  of  the  court,  says  (11  C.  B.  809; 
8.  c.  7  Eng.  L.  &  Eq.  510),  '  The  statute  incorporating  the  defendants'  company, 
gives  no  authority  respecting  the  bills  in  parliament  promoted  by  the  plaintiffs, 
and  we  are  therefore  bound  to  say,  that  any  contract  relating  to  such  bills  is  not 
justified  by  the  act  of  parliament,  is  not  within  the  scope  of  the  authority  of  the 
company  as  a  corporation,  and  is  therefore  void.' 

■•  This  case  was  afterwards  recognized  and  acted  on  by  the  Exchequer  Cham- 
ber, in  the  case  of  MacGregor  v.  The  Official  Manager  of  the  Deal  &  Dover 
Railway  ( lompany,  18  Q.  B.  (318  ;  s.  c.  16  Eng.  L.  &  Eq.  180.  It  must,  there- 
fore, be  now  considered  as  a  well-settled  doctrine,  that  a  company,  incorporated 
by  art  ot  parliament  lor  a  special  purpose,  cannot  devote  any  part  of  its  funds  to 
unauthorized  by  the  terms  of  its  incorporation,  however  desirable  such 
an  application  may  appear  to  be. 

"  1  have  referred  to  these  cases,  and  there  are  others  to  the  same  effect,  for 

[*31] 


§  12.  CONTRACTS    ENFORCED    IF    RAILWAY    ABANDONED.  35 

*  are  certainly  not  regarded  ordinarily  as  the  just  basis  of  con- 
tracts.2 

the  purpose  of  showing  how  firmly  the  law  on  this  subject  is  established,  and  of 
guarding  myself  against  being  supposed  to  throw  any  doubt  upon  it.  But  I  do 
not  think  that  the  present  case  comes  within  the  principle  on  which  these  de- 
cisions have  rested.  The  making  of  the  Wisbeach  &  Spalding  Branch  was  not 
treated  by  the  legislature  as  a  new  and  independent  object  to  be  carried  into 
execution  by  distinct  funds  raised  for  that  special  purpose.  The  power  to  make 
the  new  line  was,  according  to  the  construction  I  put  on  the  act,  merely  an  ad- 
dition to  the  powers  conferred  by  the  former  acts.  So  that  after  the  Wisbeach 
&  Spalding  act  came  into  operation,  the  rights  and  powers  of  the  company  were 
to  be  regarded  as  if  they  had  originally  been  powers,  to  make  the  new  line  and 
to  raise  the  additional  capital.  The  new  works  were  to  be  considered  as  having 
formed  part  of  the  original  undertaking,  and  the  new  shares  were  to  be  consid- 
ered as  part  of  the  general  capital.  From  the  time,  therefore,  when  the  Wisbeach 
&  Spalding  bill  received  the  royal  assent  (and  until  that  happened  there  was  no 
binding  contract),  the  directors  had  just  the  same  right  to  apply  their  funds  to 
the  purchase  of  land  for  the  purposes  of  the  new  line,  as,  before  the  passing 
of  that  act,  they  had  for  the  purchasing  of  land  for  the  original  line.  This  con- 
sideration, therefore,  seems  to  me  clearly  to  distinguish  the  present  case  from  all 
those  cases  cited  in  the  argument.  The  contract  here  was  to  apply  the  funds 
of  the  company  to  a  purchase  within  the  scope  of  its  incorporation,  and  not  to 
any  purposes  foreign  to  it,  and  I  see  no  objection,  therefore,  to  the  contract  on 
this  first  ground. 

"  But  it  was  argued,  secondly,  that  even  supposing  the  contract  not  to  be  open 
to  objection  on  the  ground  of  its  being  an  attempt  to  appropriate  the  company's 
funds  to  an  object  foreign  to  their  original  purposes,  still,  that  it  could  not  be 
supported,  inasmuch  as  it  was  an  agreement  to  purchase,  for  the  new  railway, 
lands  not  wanted  for  the  purpose  of  making  it.  The  directors  had  originally 
desired  to  obtain  powers  to  make  a  straight  cut  from  their  new  line  to  join  the 
Ambergate,  Nottingham,  &  Boston  Railway,  and  for  that  purpose  it  would  have 
been  essential  to  them  to  possess  the  plaintiff's  land,  but  they  failed  in  their 
object  of  obtaining  power  to  form  this  straight  cut,  and  then  there  was  not,  it 
was  said,  any  necessity  for  them  to  get  possession  of  the  plaintiff's  land.  A  small 
portion  only  of  it,  about  an  acre  and  a  half,  is  within  the  line  of  deviation,  and  it 
was  argued  that  a  contract  to  purchase  the  whole  (nearly  six  acres)  was  a  con- 
tract ultra  vires,  inasmuch  as  the  company  could  only  purchase  what  was  really 
necessary  or  proper  for  the  construction  of  the  line.  But  the  answer  to  this 
argument  appeai-ed  to  me  satisfactory.  The  contract  was  not  necessarily,  and 
on  the  face  of  it,  ultra  vires.  If  the  land  in  question  was  really  wanted  by  the 
appellants  for  what  are  called  extraordinary  purposes,  they  were  authorized  to 


2  Gage  v.  Newmarket  Railway  Co.,  18  Q.  B.  457  ;  s.  c.  7  Railw.  C.  168  ;  s.  c. 
14  Eng.  L.  &  Eq.  57;  Porcher  v.  Gardner,  14  Jur.  43;  19  L.  J.  63;  8  C.  B. 
461;  Shelford  on  Railways,  402.  See  also  Cumberland  Valley  Railway  Co.  v. 
Baab,  9  Watts,  458;  Hawkes  v.  Eastern  Counties  Railway  Co.,  1  De  G.  M.  & 
G.  737 ;  s.  c.  3  De  G.  &  S.  314 ;  7  Railw.  Cases,  219  ;  s.  c.  4  Eng.  L.  &  Eq.  91. 

[•82] 


PRELIMINARY    ASSOCIATIONS.  PARTI. 

•  2.  Bui  in  many  cases  these  provisional  contracts  have  been 
enforced,  notwithstanding  the  projected  works   have    been    aban- 

purchase  it.  Besides  the  line  of  deviation  actually  cuts  the  respondent's  house 
in  two,  and  in  Buch  circumstances  the  appellants  had  no  right  to  take  a  part 
without  taking  the  whole,  it'  the  plaintiff  required  ihem  to  do  so;  and  it  is  a 
reasonable  inferen  'e  thai  1 1 1 « -  contract  to  purchase  the  whole  was  made,  because, 
wanting  what  was  within  the  limits  of  deviation,  the  directors  knew  that  they 
could  not  stop  short  with  what  was  within  those  limits.  Be  that,  however,  as  it 
there  was  nothing  to  show  the  respondent  that  //is  hind  was  not  wanted  for 
tl,,  legiti  •  of  the  company,  and  in  such  a  case  it  cannot  be  permitted 

irectors  to  allege  that  the  contract  was  invalid  as  being  beyond  their 
powers  :  for,  as  argued  at  the  bar,  it  could  he  no  answer  to  an  action  for  iron 
rails  bargained  and  sold,  thai  the  contract  had  been  entered  into,  not  in  order 
to  obtain  rails  for  the  use  of  the  line,  but  in  order  to  keep  them  in  hand  for  the 
purpose  of  a  future  use,  on  a  speculation  that  iron  was  likely  to  rise  in  value. 
I  consider,  therefore,  that  this  second  objection  is  as  untenable  as  the  first.'1 

In  regard  to  the  second  point  adverted  to  in  the  head-notes  of  this  case,  Lord 
obeli  made  some  comments,  which  seem  to  us  of  very  considerable  weight  as 
applicable  to  the  general  subject  involved:  "During  the  argument  there  was 
much  discussion  on  the  question  how  far  such  a  company  is  bound  by  contracts 
entered  into  by  the  promoters  of  the  act  of  parliament  by  which  the  company  is 
constituted.  That  question  really  does  not  properly  arise  here;  but  I  think  it 
right  to  guard  myself  against  the  peril  of  being. supposed  to  acquiesce  in  the  doc- 
trine contended  for  by  the  respondent's  counsel,  that  there  is  complete  identity 
between  the  promoters  of  the  act  and  the  company,  and  that,  as  soon  as  the  act 
ha-  received  the  royal  assent,  a  bill  in  equity  might  be  filed  against  the  company 
for  specific  performance  of  any  contracts  respecting  land  into  which  the  promoters 
had  entered.  If  the  company  should  adopt  the  contract  and  have  the  full  benefit 
of  it,  1  think  the  company  would  lie  bound  by  it  in  equity,  and  therefore  I 
approve  of  the  decision  in  Bdwards  v.  Grand  Junction  Canal  Company,  1  Myl. 
&  I  ..  650;  1  Etailw.  C.  173;  although  the  language  of  Lord  Cottenham  in  that 
may  require  qualification  and  must  be  taken  with  reference  to  the  facts  with 
which  he  was  dealing.  But  it  seems  to  me  that  the  extension  contended  for  of 
the  principle  on  which  that  case,  and  several  similar  cases  which  have  followed  it, 
rest,  is  quite  unreasonable,  and  would  lead  to  very  mischievous  consequences. 

•'  Here,  then,  is  a  contract  admitted  to  lie  under  the  common  seal  of  the  com- 
pany. The  appellants  make  an  idle  allegation  that  the  seal  was  affixed  without 
the  sanction  of  a  majority  of  the  members  of  the  company,  but  no  fraud  is  im- 
puted to  .Mr.  Eawkes.  The  directors  have  repeatedly  recognized  the  validity 
of  the  contract,  and  in  an  action  at  law  upon  it,  under  a  plea  of  non  est  factum, 
they  could  have  had  no  defence,  though,  if  they  could  allege  and  prove  that 
Mr-    'f' ■■•■  guilty  of  illegality  in  entering  into   it,  the  action  would  be 

barred. 

"  But  dismissing  the  charge  that  he  was  bargaining  for  the  application  of  the 

funds  of  tli-  company  to  a  line  to  be  made  without  the  authority  of  Parliament, 

the  contract    is   merely  the  ordinary  contract  between   a  company  meaning  to 

apply  to  parliament  for  authority  to  extend  a  line  of  railway,  and  the  owners  of 

I     ■'"  i 


§  12.  CONTRACTS    ENFORCED    IF    RAILWAY    ABANDONED.  37 

doned.3  *  But  where  the  contract  is  a  mere  arrangement  to  pur- 
chase land  at  a  specified  price,  for  the  purpose  of  building  the 

the  land  through  which  the  extended  line  is  meant  to  pass,  to  be  carried  into 
effect  if  the  solicited  act  of  parliament  be  obtained.  The  shareholders  of  the 
company  might  if  they  pleased  object  to  their  funds  being  applied  to  defraying 
the  expense  of  soliciting  the  bill,  but  if  they  remain  quiet  it  may  fairly  be  in- 
ferred that  they  all  approve  of  the  extension ;  and  when  the  bill  to  authorize  the 
extension  has  received  the  royal  assent,  no  shareholder  can  any  longer  complain. 
According  to  the  manner  in  which  such  bills  are  usually  framed,  the  extended 
line  becomes  part  of  the  concern  to  be  managed  by  the  company  for  the  profit 
of  the  body  of  shareholders,  power  being  given  to  the  company  to  increase  the 
capital,  or  by  some  means  to  provide  the  money  necessary  to  complete  the  ex- 
tended line.  Since  the  case  of  Simpson  v.  Lord  Howden,  9  CI.  &  Fin.  61,  it  is 
impossible  to  contend  that  an  agreement  by  a  land-owner  to  withdraw  opposition 
to  a  bill  for  a  railway  intended  to  pass  through  his  property  is  not  a  good  and 
valuable  consideration.  I  adhere  to  the  doctrine  laid  down  in  a  passage  quoted 
from  my  judgment  in  the  case  of  the  Mayor  of  Norwich  v.  The  Norfolk  Railway 
Company,  4  Ell.  &  Bl.  397  ;  s.  c.  30  Eng.  L.  &  Eq.  120 ;  but  that  referred  to 
doing  something  which  was  positively  criminal  and  indictable,  the  obstruction 
of  a  navigable  river  by  building  a  bridge  across  it.  This  cannot  lawfully  be 
done  in  the  hope  that  an  act  of  parliament  may  be  obtained  to  legalize  it.  But 
where  no  offence  is  to  be  committed  against  the  public,  and  there  is  a  mere  want 
of  authority  for  a  transaction  among  private  individuals  or  commercial  com- 
panies, which  authority  can  only  be  obtained  by  act  of  parliament,  no  objection 
whatever  can  be  successfully  made  to  the  parties  entering  into  an  agreement  for 
completing  the  transaction  when  the  necessary  authority  is  so  obtained." 

In  regard  to  decreeing  specific  performance  of  contracts  of  this  character,  the 
Lord  Chancellor  makes  some  pertinent  remarks :  "  The  third  point  made  in  sup- 
port of  this  appeal  was,  that  even  taking  the  contract  to  have  been  a  good  and 
valid  contract,  into  which  the  company  might  lawfully  enter,  still,  the  case  was 
one  in  which  a  court  of  equity  ought  not  to  interfere,  but  ought  to  leave  the 
plaintiff  to  assert  his  legal  rights  by  action.  It  was  argued  that  the  court  has 
frequently  acted  on  this  principle  in  suits  where  a  vendor  has  been  seeking,  as 
in  this  case,  to  enforce  against  a  railway  company  the  specific  performance  of  a 
contract  for  the  purchase  of  land,  when  the  time  within  which  the  line  was  to 
be  made  had  expired.  And  reference  was  in  particular  made  to  two  cases 
decided  by  Lords  Justices  Knight  Bruce  and  myself,  when  I  held  the  office  of 
Lord  Justice.  I  allude  to  the  cases  of  Webb  v.  The  Direct  London  and  Ports- 
mouth Railway  Company,  1  De  G.  Mac.  &  G.  521 ;  s.  c.  9  Eng.  L.  &  Eq.  249, 


3  Shrewsbury  &  Birmingham  Railway  Co.  v.  London  &  Northwestern  Rail- 
way Co.,  3  Mac.  &  G.  70;  s.  c.  20  L.  J.  Ch.  90;  s.  c.  14  Jur.  921 ;  1  Eng.  L. 
&  Eq.  122;  Hawkes  v.  Eastern  Counties  Railway  Co.,  3  De  G.  &  S.  314;  s.  c. 
20  L.  J.  243;  s.  c.  4  Eng.  L.  &  Eq.  91  ;  Preston  v.  Liverpool,  Manchester,  & 
Newcastle-upon-Tyne  Junction  Railway  Co.,  1  Simons  (n.  s.)  586  ;  7  Railway 
C.  1;  7  Eng.  L.  &  Eq.  124. 

[*34] 


PRELIMINARY    ASSOCIATIONS.  PART  I. 

*  railway,  and  the  quieting  of  opposition  does  not  enter  into  the 

aideration,  the  company  are  not  bound  to  pay  over  the  money, 

*  unless  they  enter  upon  some  portion  of  the  land,  and  under  such 
circumstances  an  absolute  covenant  to  pay  the  money,  by  the 
company,  would  be  ultra  vires  and  void.4 

and  Stuart  o.  The  London  &  Northwestern  Railway  Company,  1  De  G.  Mac.  & 
G.  721;  s.  c.  11  Eng.  L.  &  Eq.  112. 

••  In  the  former  of  tlie.se  eases  (the  particulars  of  which  his  lordship  fully 
stated")  tli"  court  proceeded  on  two  grounds.  In  the  first  place,  the  terms  in 
which  the  deed  was  framed  were  such  as  to  lead  the  court  strongly  to  the  con- 
clusioD  that  the  whole  contract  was  meant  to  be  conditional  on  the  line  being 
formed,  and  that  if  it  should  be  (as  in  fact  it  was)  abandoned  by  its  projectors, 
then  all  the  provisions  of  the  agreement  were  to  fall  to  the  ground  ;  a  construc- 
tion, I  may  observe,  which  receives  great  support  from  the  subsequent  case  of 
Gage  r.  The  Newmarket  Railway  Company,  18  Q.  B.  457;  s.  c.  1-4  Eng.  L.  & 
Eq.  57.  But  independently  of  that  difficulty  the  case  appeared  to  be  one  in 
which  a  court  of  equity  ought  not  to  interfere  in  favor  of  the  plaintiff,  for 
that,  by  any  such  interference,  we  should  be  doing  injustice  in  the  attempt  to 
add  to  the  legal  remedy.  The  injury  which  the  plaintiff  sustained  by  the  non- 
performance  of  the  contract  was  this :  though  he  was  left  with  the  whole  of  his 
land  untouched,  he  lost  all  claim  to  the  £4,500,  and  might,  perhaps,  have  sus- 
tained damage  consequent  on  his  having  been  for  five  years  liable  to  have  any 
portion  of  it,  not  exceeding  eight  acres,  taken  by  the  company  for  the  purpose 
of  the  railway.  That  was  evidently  a  case  for  compensation  by  action  for  damages 
not  for  relief  by  way  of  specif  c  performance.  Indeed,  I  hardly  know  how  a 
decree  for  specific  performance  cotdd  have  been  there  enforced,  for  no  particular 
eight  acres  had  been  contracted  for,  and  the  company  had  no  power  to  select 
eight  acres,  except  for  the  purpose  of  making  the  railway,  the  power  to  make 
which  had  long  since  ceased.  On  these  grounds  the  court  refused  to  interfere, 
leaving  the  plaintiff  to  the  legal  remedy  on  his  covenant. 

"  I  have  thought  it  necessary  to  explain  the  grounds  on  which  the  decision  in 
these  two  cases  rested,  for  the  purpose  of  showing  that  they  are  not  at  variance 
with  the  decision  now  under  appeal.  Here  there  is  no  uncertainty  as  to  the 
subject-matter  of  the  purchase.  The  vendor  did  not  sleep  on  his  rights,  and 
wait  until  it  was  impossible  for  the  purchaser  to  make  the  line.  On  the  con- 
trary, from  the  very  day  on  which  the  contract  was  to  be  completed,  he  insisted 
on  its  performance,  having  shortly  before  that  time  quitted  possession  of  the 
property,  and  within  less  than  five  months  afterwards  he  filed  his  bill.  It  is  true 
that  the  directors,  after  the  filing  of  the  bill,  allowed  the  time  to  pass  within 
which  they  were  bound  to  complete  the  line.  But  the  plaintiff  is  not  to  blame 
for  that.  Be  did  not,  either  actively  or  passively,  mislead  the  defendants,  and  it 
would  be  impossible  to  hold  that  he  is  not  entitled  to  the  relief  he  asks,  without 
going  to  the  length  of  saying  that  no  vendor  of  an  estate,  contracting  to  sell  to 
a  railway  company,  can  ever  have  a  decree  for  a  specific  performance  if  the  com- 
pany should  see  fit  afterwards  to  abandon  the  undertaking,  with  a  view  to  which 
the  contract  was  made." 

4  Gage  v.  The  Newmarket  Railway,  18  Q.  B.  457  ;  8.  c.  14  Eng.  L.  &  Eq.  57. 
[*35,  36] 


§  12.      CONTRACTS  ENFORCED  IF  RAILWAY  ABANDONED.        39 

*In  an  important  case5  before  the  House  of  Lords,  the  doctrine 
of  the  former  cases  is  assumed  to  have  established  the  proposition, 

In  this  case,  the  views  of  Lord  Campbell,  in  delivering  the  opinion  of  the  court, 
do  not  seem  to  be  altogether  reconcilable  with  those  expressed  by  the  Lord  Chan- 
cellor, in  Hawkes  v.  The  Eastern  Counties  Railway,  but  as  they  seem  to  us  more 
consistent  with  the  views  maintained  in  this  country,  upon  analogous  subjects, 
and  those  which  we  anticipate  may  probably  find  more  favor  in  the  English  courts 
when  the  outward  pressure  of  circumstances  shall,  by  lapse  of  time,  be  removed, 
we  here  adopt  them.  Lord  Campbell,  C.  J.  :  "  We  are  of  opinion,  that  the  de- 
fendants are  entitled  to  our  judgment.  Taking  the  deed  as  set  out  on  oyer,  we 
think  that  there  is  no  breach  well  assigned  upon  it.  The  covenant  there  (without 
saying  any  thing  as  the  declaration  does  about  '  reasonable  time '  )  is  merely  in 
these  words  :  '  That  in  the  event  of  the  bill  hereinbefore  mentioned  being  passed 
in  the  present  session  of  parliament,  the  said  company  shall,  before  they  shall  enter 
upon  any  part  of  the  lands  of  the  said  Sir  Thomas  Rokewood  Gage,  in  the  said 
county  of  Suffolk,  pay  to  the  said  Sir  T.  R.  Gage,  his  heirs  and  assigns,  the  sum 
of  £4,900  purchase-money,  for  any  portion  of  his  lands  not  exceeding  forty- 
three  acres,  which  the  said  company  may,  under  the  powers  of  their  act,  require 
and  take  f  jr  the  purposes  of  their  undertaking ;  that  in  addition  to  purchase- 
money  as  aforesaid,  the  said  company  shall  pay  to  the  said  Sir  T.  R.  Gage,  his 
heirs  and  assigns,  before  they  shall  enter  upon  any  part  of  the  said  land,  the  sum 
of  £7,100  as  a  landlord's  compensation  for  the  damage  arising  to  his  estate  by 
the  severance  thereof,  in  respect  of  the  lands,  not  exceeding  forty-three  acres,  to 
be  taken  by  them.'  The  question  we  have  to  determine  is  whether  the  company, 
never  having  entered  upon  any  part  of  the  plaintiff's  lands,  he  is  now  entitled 
to  sue  for  these  two  sums,  or  either  of  them.  The  £4,900  is  declared  to  be  the 
purchase-money  for  the  land  to  be  required  and  taken ;  and  the  only  time  of 
payment  mentioned  is  before  the  company  enter  on  the  land.  Therefore,  if  no 
land  is  required  or  taken,  and  the  company  never  enter  on  any  part  of  the  land, 
there  seems  great  difficulty  in  saying  that  there  has  been  a  breach  of  covenant 
in  not  paying  the  money.  So  the  £7,100  is  declared  to  be  a  compensation  for 
the  severance  of  the  land  taken  from  the  rest  of  the  plaintiff's  land,  and  the  same 
time  of  payment  is  defined.  But  there  has  been  no  severance  to  be  compen- 
sated, and  the  time  for  payment  has  not  arrived.  The  deed  does  not  bargain  for 
a  sum  of  money  to  be  paid  absolutely  by  the  company  to  the  plaintiff,  as  a  con- 
sideration for  his  withdrawing  his  opposition  to  the  bill,  but  provides  a  peculiar 
mode  of  estimating  the  value  of  the  land  to  be  taken,  and  of  the  compensation  to 
be  made  for  severance-damage,  instead  of  the  modes  pointed  out  by  the  general 
acts  upon  this  subject.  We  therefore  do  not  think  that  the  company  can  be 
considered  as  having  absolutely  covenanted  to  pay  £12,000  to  the  plaintiff,  in  a 
reasonable  time  after  the  passing  of  the  act.  If  this  deed  could  bear  such  a  con- 
struction, we  should  have  thought  it  so  far  ultra  vires  and  void.  Here  the  rail- 
wav  company  are  the  covenanters ;    and  if  the  present  action  lies,  the  capital 


5  The  Scottish  Northeastern  Railway  v.  Stewart,  5  Jur.  (N.  S.)  637  ;  3  Macq. 
H.  Lds.  Cas.  382. 

[*37] 


40  PRELIMINARY    ASSOCIATIONS.  PART  I. 

that  the  acts  of  parliament  to  railway  companies,  empowering  them 
to  build  railways,  are  enabling  and  not  obligatory  in  their  nature. 
And  it  was  here  considered,  that  upon  a  contract  whereby  the  com- 
pany before  obtaining  their  act,  executed  a  debenture  bond  in  the 
gum  of  '-'  I  1,500  to  one  of  the  land-owners,  as  the  sum  to  be  paid 
•him  before  breaking  ground,  taking  a  counter  obligation  to  repay 
the  sum  if  the  bill  should  not  pass  ;  and,  having  obtained  their  act 
but  never  exercised  its  powers  or  built  their  road,  it  must  be  held, 
that,  upon  the  fair  construction  of  the  whole  transaction  with  refer- 
ence i"  the  more  recent  view  taken  by  the  courts  of  the  law  appli- 
cable to  such  contracts,  the  money  stipulated  was  not  due  the 
land  owner  except  upon  the  company  breaking  ground  for  the  pur- 
pose of  constructing  their  works. 

paid  up  by  the  shareholders  must  be  answerable  for  the  damages  to  be  recovered. 
We  consider  that  this  would  be  a  misappropriation  of  the  funds  of  the  company, 
which  the  directors  could  not  lawfully  make.  All  the  cases  relied  upon  by  the 
plaintiff's  counsel  are  clearly  distinguished  from  the  present,  except  Webb  v. 
The  London  &  Portsmouth  Railway  Company,  before  Vice-Chancellor  Turner. 
Notwithstanding  our  high  respect  for  that  learned  judge,  we  cannot  concur  in  the 
reasons  for  his  decision;  and  although  it  has  not  been  expressly  overturned,  its 
authority  was  greatly  shaken  when  it  came  before  the  Lords  Justices  of  Appeal. 
We  do  not  fed  it  necessary  to  give  any  opinion  upon  the  case  of  Bland  v.  Crow- 
lev,  in  whirh  the  learned  judges  of  the  Court  of  P^xchequer  were  divided,  as  the 
deed  there  discussed  varies  materially  from  the  present.  Nor  would  it  be  proper 
to  give  any  opinion  upon  Stuart  v.  The  London  &  Northwestern  Railway  Com- 
pany, as  we  learn  that  when  it  came  before  the  Lords  Justices  of  Appeal,  it  was 
sent  by  them  to  be  decided  in  a  court  of  law.  We  are  happy  to  think  that  the 
question  in  this  case  being  on  the  record,  it  may  be  brought  before  a  court  of 
error.1"  See  §  16,  and  notes.  The  same  principle  was  further  enforced  and 
illustrated,  in  a  recent  case,  in  the  House  of  Lords.  Edinburgh,  Perth,  &  Dun- 
dee Railway  c  Philip,  2  NTQueen  H.  of  Lds.  514;  s.  c,  28  Law  Times,  345,  39 
.  L.  &  Eq.  41:  If  an  agreement  of  this  kind  is  made  in  advance  of  the 
charter  of  the  company  and  with  reference  to  that  being  obtained  it  is  to  be 
viev.  me  as  if  made  afterwards,  and  it  may  be  enforced  although  part  of 

the  sum  agreed  to  be  paid  was  for  the  annoyance  caused  by  the  works,  which 
would  nol  accrue  if  the  road  were  not  built,  or  the  land  not  taken.  Taylor  v. 
Ch.  &  Mid.  Railw.,  L.  R.  4  Ho.  Lds.  628. 

[*38] 


§13. 


PRACTICE   IN   DECREEING   SPECIFIC    PERFORMANCE. 


41 


SECTION    XII. 


Practice  of  Courts  of  Equity  in  decreeing  Specific  Performance. 


1.  Mutual  arrangements  protected  in   Chan- 

cery. 

2.  But  decisions  are  conflicting .     In  cases 


of  doubtful  right  plaintiff  is  remitted  to 
common-law  remedies, 
n.  2.  Statement  of  cases. 


§  13.  1.  The  English  courts  of  chancery  have  in  many  instances, 
enforced  specific  performance  of  contracts,  between  different  lines 
of  railway,  fixing  mutual  arrangements,  in  reference  to  their 
future  operations,  even  where  acts  of  parliament  were  necessary  to 
carry  such  contracts  into  full  effect,  and  sometimes,  after  a  change 
of  circumstances,  materially  affecting  the  interest  of  the  parties 
concerned.  And  those  courts  have  often  enforced  an  injunction, 
in  cases  of  this  kind,  where  interests  of  great  magnitude  were  con- 
cerned, even  where  the  right  of  the  plaintiff  was  questionable, 
upon  the  ground  that  things  were  required  to  be  kept  in  a  safe 
train,  until  the  rights  of  the  respective  parties  could  be  definitely 
determined.1 

2.  But  the  practice  of  the  English  courts  of  equity,  in  regard  to 
this  subject,  resting  chiefly  in  discretion,  as  might  be  expected,  is 
very  variable,  and  the  cases  not  easily  reconcilable.  In  many 
cases,  where  the  right  of  the  plaintiff  is  doubtful,  the  injunction  to 
stay  the  progress  of  the  road  till  the  contract  was  performed  has 
been  denied,  and  the  party  remitted  to  his  rights  in  a  court  of 
law.2    The  latter  course  would  seem  to  be  most  consistent  with 


1  Great  Western  Railway  Co.  v.  The  Birmingham  &  Oxford  Junction  Railw. 
Co.  &  others,  2  Phillips,  Ch.  Cases,  597.  The  remarks  of  Cottenham,  Lord 
Chancellor,  in  this  case,  are  very  pointed,  in  defence  of  the  practice,  in  the 
English  courts  of  equity,  of  enforcing  contracts,  made  by  the  projectors  of  rail- 
ways, against  the  company  itself,  after  it  comes  into  operation. 

2  Webb  v.  Direct  London  &  Portsmouth  Railw.  Co.,  1  De  G.,  M.  &  G.  521  ; 
s.  c.  9  Eng.  L.  &  Eq.  249.  When  the  same  case  was  before  the  Vice-Chancellor, 
Turner,  he  seemed  to  regard  the  plaintiff  as  entitled  to  specific  performance,  but 
the  Lords  Justices,  upon  appeal,  entertained  no  doubt  that  the  party  should  be 
remitted  to  his  rights  in  a  court  of  law.  See  Preston  v.  Liverpool,  Manchester, 
&  Newcastle  Junction  Railw.  Co.,  1  Simmons  (N.  S.),  586;  s.  c.  7  Eng.  L. 
&  Eq.  124.  The  Court  of  Appeal,  in  a  similar  case,  Lord  J.  Stuart  v.  London 
and  Northwestern  Railw.  Co.,  1  De  G.,  M.  &  G.  721;  s.  c.  7  Railw.  "C.  44; 
11  Eng.  L.  &  Eq.  112,  put  their  refusal  to  decree  specific  performance,  upon  the 

[*38] 


42  PRELIMINARY    ASSOCIATIONS.  PART  I. 

*  the  ordinary  proceedings  of  courts  of  equity,  in  applications  for 
specific  performance. 

grounds,  that  the  party,  if  he  had  any  right,  could  obtain  complete  redress  at 
law,  and  that,  alter  the  abandonment  oi'  the  project,  or  material  departures  from 
it,  it  would  be  impossible  for  the  railway  to  hold  the  land  to  any  beneficial  pur- 
.  after  paying  the  money,  and  that  therefore  the  principle  of  mutuality 
wh  illy  failed.  The  Lord  Chancellor,  St.  Leonards,  seemed  also  to  be  of  opinion 
that  the  only  ground  upon  which  the  decision,  in  Webb  v.  London  &  Portsmouth 
Railw.  Co.,  1  De  (',.,  M.  &  G.  521  ;  s.  c.  9  Eng.  L.  &  Eq.  249,  could  be  vindi- 
I.  was  the  want  of  mutuality.  But  it  would  seem,  that  this  whole  class  of 
s,  where  contracts  have  been  made  to  take  land,  either  at  a  given  price  per 
acre  or  for  a  gross  sum,  or  to  pay  a  sum  of  money  for  the  damage  to  an  estate 
in  gross,  by  reason  of  a  railway  coming  in  a  certain  line,  either  across  or  near 
the  premises  of  the  obligee,  should  be  regarded  as  conditional,  unless  the  con- 
trary appeared,  in  express  terms,  or  by  the  strongest  implication.  Any  other 
view  of  these  parliamentary  contracts,  as  they  are  denominated,  gives  them  very 
much  the  air  of  wagering  policies  or  legislative  gambling  !  See  also  upon  this 
subject,  Potts  v.  The  Thames  Haven  Dock  &  Railw.  Co.,  15  Jur.  1004;  s.  C.  7 
Eng.  L.  &  Eq.  262,  where  it  is  held,  that,  in  pursuing  a  claim  for  specific  per- 
formance of  an  agreement  of  a  railway  company  to  purchase  land  of  trustees,  the 
persons  beneficially  interested  in  the  land  were  not  necessary  parties  to  the  pro- 
ceeding. A  query  is  suggested,  whether  a  specific  performance  could  be  decreed, 
there  having  been  no  valuation  of  the  land,  and  in  this  case  there  had  been  great 
delay  on  the  part  of  the  company,  owing  to  their  pecuniary  embarrassment,  but, 
after  considerable  discussion,  it  was  agreed  to  give  the  company  further  time, 
and  the  claim  was  ordered  to  stand  over.  It  has  been  held,  where  a  private 
company  leased  land,  with  a  clause  of  re-entry,  and  were  subsequently  incorpo- 
rated, with  an  express  provision  in  their  charter  that  all  contracts  made  before 
the  act  of  incorporation  shall  be  binding  upon  the  corporation,  and  they  have  the 
same  rights  as  if  these  contracts  were  entered  into  with  them,  they  might  main- 
tain ejectment  for  the  land.     London  Dock  Co.  v.  Knebell,  2  M.  &  Rob.  66. 

The  case  of  Strasburg  Railw.  Co.  v.  Echternacht,  21  Penn.  St.  220,  was  this: 
Several  persons  signed  a  paper  agreeing  that  if  the  Strasburg  Railway  should  be 
incorporated  with  certain  privileges,  they  would  subscribe  the  number  of  shares 
set  opposite  their  names  respectively,  and  the  charter  was  obtained  with  the 
privileges  in  question,  but  the  defendant,  who  was  one  of  the  subscribers  above 
tioned,  refused  to  take  the  stock,  and  it  was  held,  that  the  promise  was  with- 
out consideration,  and  therefore  not  a  contract,  but  a  mere  naked  expression  of 
intention,  which  equity  will  not  enforce  by  decree  for  specific  performance,  and 
that  if  it  was  a  binding  agreement  it  should  be  enforced  at  law.  Leave  has  some- 
times been  given  by  courts  of  equity  to  oppose  a  bill  in  parliament,  unless  certain 
compromises  between  the  projectors  and  landholders  on  the  proposed  line  should 
be  effected.  Davis  v.  Combermere,  14  Sim.  402 ;  s.  c.  3  Railw.  C.  506 ;  Mony- 
penny  v.  Monypenny,  4  Railw.  C.  226. 

It  is  said  in  one  English  work  upon  the  subject,  Hodges  on  Railways,  164, 
that  it  is  well  settled,  that  agreements  made  with  railway  companies  by  land- 
holders to  sell  their  lands,  and  to  withdraw  or  withhold  opposition  to  a  bill  in 

[*39] 


§  14.  SPECIFIC   PERFORMANCE   IN    COURTS   OF   EQUITY.  43 

^SECTION    XIII. 
Specific  Performance  in  Courts  of  Equity. 

Object  of  courts  to  compel  good  faith  when  a  definite  contract  is  made. 

§  14.  But  the  courts  of  equity  have  been  mainly  influenced  by 
what  they  esteem  the  policy  of  enforcing  these  parliamentary  con- 
parliament,  are  not  illegal.  See  also  Capper  v.  Tbe  Earl  of  Lindsey,  3  House 
of  Lords  Cases,  293;  s.  c.  14  Eng.  L.  &  Eq.  9.  This  ease  was  first  argued  in 
the  Court  of  Exchequer,  and  subsequently  in  the  Exchequer  Chamber,  on  error, 
and  finally  in  the  House  of  Lords  in  the  year  1851.  The  case  is  not  found  in  any 
of  the  English  treatises  on  railways,  except  Hodges,  and  as  it  was  long  discussed 
at  the  bar,  and  thoroughly  examined  by  almost  all  the  judges  in  the  House  of 
Lords,  it  ought  perhaps  to  be  regarded  as  the  final  determination  of  the  English 
courts  upon  the  subject.  The  question  of  legality  seems  to  have  been  taken  for 
granted  here.  This  case  was  A.,  a  landholder,  through  whose  estate  a  part  of 
the  projected  railway  was  to  pass,  became  a  party  to  a  deed  with  the  projectors 
of  the  railway,  by  which  he  covenanted  to  withdraw  his  opposition  to  their  bill 
and  to  oppose  a  rival  bill ;  and  they  covenanted  to  pay  him  a  certain  sum  of 
money  in  case  their  biil  should  pass  within  six  months  from  the  date  of  the  deed. 
It  was  then  provided  that,  if  the  bill  of  these  projectors  did  not  pass  within  six 
months  from  the  date  of  the  payment,  either  party  might  put  an  end  to  the  agree- 
ment by  notice.  The  deed  then  contained  a  covenant  on  the  part  of  the  project- 
ors, by  which  they  agreed,  if  the  two  companies  should  be  amalgamated,  to  pay 
a  certain  sum  within  three  months  after  such  amalgamation.  The  deed  was  dated 
16th  March,  1816.  The  two  companies  were  amalgamated  in  June,  1846;  but 
no  bill  ever  passed  at  the  instance  of  these  projectors  alone.  In  November, 
1846,  the  projectors  gave  notice  to  put  an  end  to  the  agreement.  The  action 
was  based  upon  that  clause  in  the  agreement  by  which  the  projectors  were  to 
pay  a  sum  of  money  in  case  of  the  amalgamation  of  the  companies.  The  defend- 
ants pleaded  that  their  bill  had  never  passed  into  a  law;  that  at  the  end  of  six 
months  they  had  given  notice  to  put  an  end  to  the  agreement,  and  that  they  had 
never  taken  the  plaintiffs  land.  The  Court  of  Exchequer  held  the  plea  to  be 
a  good  answer  to  the  action.  This  judgment  was  reversed  in  the  Exchequer 
Chamber,  and  the  latter  judgment  affirmed  in  the  House  of  Lords.  In  the  House 
of  Lords  the  question  was  submitted  to  all  the  common-law  judges,  who  gave  a 
unanimous  opinion,  by  Parke,  B.,  in  favor  of  the  plaintiff,  and  this  opinion  was 
adopted  by  the  House  without  dissent.  The  learned  judge  said,  in  conclusion, 
"  The  right  to  payment  does  not  depend  upon  the  fact  of  making  a  part  of  the 
railway  by  the  amalgamated  company  on  the  plaintiff's  estate,  or  taking,  or  using, 
or  doing  any  injury  to  the  plaintiff's  land;  the  right  to  it  depends  simply  upon 
the  efflux  of  three  months'  time  after  the  Amalgamation  Act."  Although  this 
construction  seems,  at  first  blush,  somewhat  narrow,  and  one  side  of  the  main 

[*40] 


4  1  PRELIMINARY    ASSOCIATIONS.  PART  I. 

tracts.  '  for  the  arrangement  of  conflicting  interests,  in  regard  to 
such  projected  railways.     And  they  have  declined  to  interfere  by 

purpose  of  the  agreement,  it  must,  we  tliink,  be  regarded  as  the  only  just  and 
nate  view.  The  contract  did  not  so  much  contemplate  the  taking  of  any 
portion  of  plaintiff's  land,  or  any  estimable  definite  injury  to  his  estate,  as  the 
privilege  of  doing  so,  if  that  should  become  desirable,  and  the  quieting  of  the 
d(  Pendants'  lawful  opposition  to,  or  control  of,  the  enterprise,  in  consequence  of 
his  pecuniary  interest  in  the  same.  It  was  the  purchase,  at  a  fixed  price  of  the 
privilege  or  option  to  deal  with  plaintiff's  estate,  as  one  favoring  the  project,  and 
ultimately  to  place  the  projected  line  in  such  position,  with  reference  to  the 
estate,  as  they  should  find  most  advantageous  to  themselves.  And  as  they  had 
enjoyed  what  they  bargained  for,  it  was  clearly  due  that  they  should  pay  the 
stipulated  price  of  their  purchase. 

There  is  a  casein  New  Hampshire,  Loww.  Conn.  &Pass.  Railroad  Co.,  45  N.  H. 
370  :  8.  C.  1  Redf.  Am.  Railw.  Cases,  1,  where  the  question  of  the  right  of  those 
who  have  rendered  extensive  services  in  promoting  the  subscription  to  the  stock  of 
a  corporation,  to  recover  compensation  of  the  corporation  for  time  and  money  so 
expended,  is  extensively  and  ably  discussed.  It  is  here  said  that  where,  after 
the  charter  and  before  the  organization  of  a  corporation,  services  are  rendered 
which  are  necessary  to  complete  that  organization,  and  after  it  has  been  perfected 
the  corporation  elect  to  take  the  benefit  of  such  services,  knowing  that  they  were 
rendered  with  the  understanding  that  compensation  would  be  made,  it  will  be 
held  liable  therefor,  upon  the  ground  that  it  must  take  the  benefit  with  the  burden. 
It  was  here  considered  that  the  grantees  in  a  charter  are  the  sole  members  of 
the  corporation  until  associates  are  admitted  by  them,  and  they  may  act  as  the 
corporation  without  admitting  any  others.  Hughes  v.  Parker,  19  N.  H.  181. 
But  to  ell,  ,  t  any  binding  contract  or  corporate  act,  the  concurrence  of  at  least  a 
majority  (.(such  grantees  is  requisite;  and  that  the  sole  power  of  determining  by 
what  measures  and  by  what  agency  the  organization  shall  be  effected  rests  with 
the  grantees,  a  majority  of  whose  votes  will  govern. 

This  case  seems  to  have  gone  largely  upon  the  authority  of  Hall  v.  Vt.  &  Mass. 
Railroad  ( !o.,  28  Vt.  401.  But  we  question  whether  the  principle  of  compensation 
is  not  in  fact  carried  in  both  cases  to  the  utmost  verge  of  good  policy.  In  the 
case  of  Low  v.  The  Railway  Company,  the  plaintiff  was  allowed  to  recover  the 
value  of  a  horse  which  he  delivered  to  one  of  the  efficient  promoters  of  the  enter- 
prise upon  a  sort  of  wager,  that  if  the  road  ever  reached  the  town  of  Bradford  in 
"\  ermont,  the  place  of  the  plaintiff's  residence,  this  promoter  should  have  his, 
the  plaintiff's  best  horse.  Anil,  of  course,  as  a  gentleman  of  honor,  when  the 
road  reached  the  point  indicated,  he  felt  bound  to  deliver  the  horse.  It  is  true 
that  the  court  sent  the  case  back  to  have  the  jury  find  the  fact,  that  this  promoter 
performed  efficient  service  for  the  company  in  effecting  its  organization,  and  that 
the  company  adopted  such  service  by  taking  the  benefits  of  it,  and  that  the  horse 
was  no  more  than  a  reasonable  compensation  for  such  service. 

Notwithstanding  our  own  participation  in  the  decision  of  Hall  v.  Vt.  &  Mass. 
Railway,  we  would  now  feel  that  the  rule  there  adopted  in  regard  to  charging 
service,  rendered  in  effecting  the  organization  of  the  company,  to  the  corpora- 
tion, is  one  of  too  great  laxity,  and  too  susceptible  of  abuse,  to  afford  a  safe  guide 

[HI] 


§  14.  SPECIFIC   PERFORMANCE    IN    COURTS   OF   EQUITY.  45 

*  injunction,  where  no  such  contract  had  been  definitely  made,1  not- 
withstanding such  representations  on  the  part  of  the  promoters,  as 
misled  the  agents  of  the  land-owner.  Thus  showing,  very  explic- 
itly, that  the  main  ground  upon  which  the  English  courts  of  equity 
have  proceeded,  in  decreeing  specific  performance,  and  enforcing 
it  by  injunction,  has  been  to  compel  good  faith  on  the  part  of  such 
incorporations,  in  carrying  into  effect  any  contracts  on  their  part. 
For  it  is  said  by  the  English  courts,  having  obtained  advantages  in 
consequence  of  the  contracts  and  assurances  of  the  agents  em- 
ployed in  the  projects,  it  would  tend  to  destroy  all  confidence  in 
any  such  arrangement,  if  they  were  not  enforced,  which  would  be 
of  evil  example  and  tend  to  great  practical  inconvenience.  But 
where  the  parties  stand  upon  their  legal  rights,  as  secured  in  the 
act  of  incorporation,  a  court  of  equity  will  not  interfere.2  In  a 
later  case  these  *  provisional  contracts  seem  to  be  regarded  as  condi- 
tional, depending,  ordinarily,  for  their  obligation,  as  against  the 
corporation,  upon  their  having  done  any  thing  under  their  charter 

in  these  lax  times,  when  every  possible  avenue  to  corruption  is  sure  to  find  some 
one  desperate  enough  to  enter.  There  should  at  least  be  proof  that  the  service 
was  performed  under  an  expectation  of  compensation,  and  that  the  corporation 
expressly  promised  payment.  And  in  the  Earl  of  Lindsay  v.  The  Great  North- 
ern Railway  Co.,  10  Hare,  665 ;  s.  c.  19  Eng.  L.  &  Eq.  87,  before  V.  C.  Wood, 
it  is  said,  "  that  the  agreement  is  legal  in  itself,  is  now  settled  by  authority." 
In  this  case,  which  was  a  contract  that  the  trains  should  stop  at  a  particular 
station,  the  court  decreed  a  specific  performance,  giving  the  companies  time 
to  make  the  necessary  arrangements,  before  making  the  decree  absolute. 
But  one  railway  company  cannot  bind  itself  to  defray  the  expense  of  an  appli- 
cation to  parliament  by  another  company,  for  the  establishment  of  another  line 
of  railway,  expected  incidentally  to  benefit  the  first  company.  Such  contract 
is  beyond  the  ordinary  scope  of  the  powers  of  a  railway  company,  and  con- 
sequently illegal,  and  such  a  covenant  cannot  be  enforced  in  a  court  of  law, 
however  beneficial  to  the  covenanter  the  objects  of  the  covenant,  if  carried  out, 
might  be.  East  Anglian  Railway  Company  v.  The  Eastern  Counties  Railway 
Company,  11  C.  B.  775  ;  s.  c.  7  Eng.  L.  &  Eq.  505;  McGregor  v.  The  Deal  & 
Dover  Railway  Company,  18  Q.  B.  618;  s.  c.  16  id.  180;  post,  §§  56,  137. 

1  Hargreaves  v.  Lancaster  &  Preston  J.  Railway  Company,  1  Railw.  Cas.  416. 

2  Aldred  v.  North  Midland  Railway  Company,  1  Railw.  Cas.  404 ;  Provost 
and  Fellows  of  Eton  College  v.  Great  Western  Railway  Company,  1  Railw.  Cas. 
200.  Where  the  plaintiff  had  incurred  expense  in  bringing  the  scheme  of  a  pro- 
posed railway  before  the  public,  and  in  consideration  thereof  the  promoters  had 
agreed  that  the  company  should  pay  him  £2,000  at  a  certain  point  of  its  success, 
the  contract  was  enforced  notwithstanding  the  company  never  went  into  full  oper- 
ation.    Touche  v.  Met.  R.  W.  Co.,  L.  R.  6  Ch.  App.  671,  L.  C. 

[*42,  43] 


I   i  PRELIMINARY    ASSOCIATIONS.  PART  I. 

which  flif  agreement  enabled  them  to  do,  so  as  thereby  to  have 
n  c  lived  the  benefits  of  it.8 


SECTION    XIV. 

C      U  of  Equity  may  restrain  a  Party  from  Opposition  or  Peti- 
tion in  Parliament. 

1.  Such  cases  not  common  in  practice.  |  2.  Such  cases  not  readily  recognized. 

vj  L5.  1.  It  is  held  in  the  English  courts  of  equity  altogether 
competent  and  within  their  appropriate  jurisdiction,  to  restrain  a 
party  from  opposing  a  bill  in  parliament  by  petition,  if  a  proper 
case  is  made  out,  and  by  parity  of  reason  from  pursuing  a  petition 
in  favor  of  an  act  of  parliament.1  But  such  cases  are  not  com- 
mon   in  practice,   *  and    dependent  upon  peculiar  circumstances, 

3  Gooday  v.  Colchester  &  Stour  Valley  Railway  Company,  17  Beav.  132;  s.  c. 
15  Eng.  L.  iV-  Eq.  596.  In  this  case  the  Master  of  the  Rolls  said  :  "  Since  the  act 
was  obtained,  nothing  has  been  done  nor  any  step  taken  to  construct  the  railway. 
There  is  no  distinct  evidence  indeed  that  the  railway  has  been  abandoned,  but  no 
money  has  been  paid,  no  land  taken,  nor  any  movement  made  towards  carrying  on 
the  scheme,  and  the  compulsory  powers  of  the  act  have  now  ceased.  Under  these 
circumstances,  I  cannot  say  that  the  company  has  adopted  the  agreement,  or  is 
bound  by  its  terms  ;  and  therefore  I  do  not  think  I  can  compel  them  to  admit 
the  contract  in  an  action  at  law."  Very  recently,  in  Williams  v.  The  St.  George's 
Harbor  ( lompany,  30  Law  Times,  84  ;  s.  c.  2  De  G.  &  J.  547,  it  was  held  by  the 
Master  of  the  Rolls,  that  an  agreement  entered  into  by  the  promoters  of  a  com- 
pany before  incorporation,  is  not  binding  on  the  company  when  incorporated, 
unless  they  subsequently  do  some  act  amounting  to  an  adoption  of  it.  This 
seems  now  to  be  the  settled  doctrine  in  the  English  courts.     Ante,  §  3. 

1  The  Stockton  &  Hartlepool  Railway  Company  v.  The  Leeds  &  Thirsk  and 
The  Clarence  Railway  Companies,  2  Phillips,  666;  s.  c.  5  Railw.  Cas.  691. 
In  tlii<  case  the  injunction  was  granted  by  the  Vice-Chancellor,  Skadwell,  but 
the  order  discharged,  by  the  Lord  Chancellor,  Cottenham,  on  the  ground  that 
no  proper  case  for  the  interference  of  a  court  of  equity  was  made  out,  but  distinctly 
affirming  the  jurisdiction.  The  Lord  Chancellor  says  :  "This  court,  then- fore,  if  it 
see  a  proper  case,  connected  with  private  property  or  interest,  has  just  the  same 
jurisdiction  to  restrain  a  party  from  petitioning  against  a  bill  in  parliament  as 
it  he  were  bringing  an  action  at  law,  or  asserting  any  other  right  connected  with 
the  enjoyment  of  the  property  or  interest  which  he  claims."  Heathcote  v.  The 
North  Staffordshire  Railway  Company,  6  Railw.  Cas.  358.  In  this  last  case  it 
held  by  the  Lord  Chancellor,  that  a  contract  to  make  a  railway  is  not  one  of 
which  a  court  of  equity  will  compel  the  specific  performance,  but  will  leave  the 
parties  to  i heir  legal  rights. 

[*44] 


§16. 


CONTRACTS    AGAINST   SOUND   POLICY. 


47 


as  where  proceedings  in  parliament  are  in  violation  of  express 
covenants,  or  for  some  other  reason,  in  bad  faith,  and  where  dam- 
ages at  law,  are  no  adequate  compensation.  These  cases  are  there- 
fore determined  much  upon  the  same  grounds  as  other  cases  of 
specific  performance,  and  come  properly  under  consideration  in 
this  connection. 

2.  In  one  case,  where  the  company  had  quieted  opposition  by 
inserting  a  clause  in  the  act  to  enable  them  to  buy  land,  which 
they  had.  agreed  to  purchase,  as  the  price  of  quieting  the  opposi- 
tion, and  afterwards  applied  for  an  act  enabling  them  to  abandon 
this  branch,  and  repealing  this  clause,  it  was  held,  that,  although 
the  court  had  power  to  restrain  an  application  to  parliament,  it 
was  difficult  to  conceive  a  case  in  which  it  would  do  so,  and  that 
it  would  not  do  so  in  this  case.2 


SECTION    XV. 

Contracts  to  withdraw  opposition  to  Railway  Projects,  and  to  keep 
this  secret,  against  sound  policy  and  would  seem  to  be  illegal. 


1.  Principle  of  foregoing  decisions  obscure. 

2.  Not  adopted  in  this  country  unless  terms 

inserted  in  charter. 

3.  Recent  change  of  views  in  English  courts. 

3-5.  Statement  of  late,  case  in  which  prin- 
ciple of  Edwards  v.  Grand  Junction 
Railway  is  doubted. 


6.  Act  of  incorporation  should  not  be  varied 

by  oral  testimony. 

7.  Contracts  to  qidet  opposition  not  favored 

in  this  country. 
n.  5.  Recent  English  and  American  decisions. 

8.  Regarded  as  ultra  vires. 

9.  May  be  enforced,  if  legislature  not  exposed 

to  be  misled. 


§  16.  1.  The  principle  of  the  foregoing  decisions,  upon  the  subject 
of  specific  performance  of  contracts  with  the  promoters  of  railway 
projects  being  enforced  in  courts  of  equity  against  the  company, 
is,  to  say  the  least  of  it,  somewhat  obscure.  Regarded  as  illegal 
contracts,  it  does  not  seem  very  apparent  how  they  can  with  much 
show  of  consistency,  be  specifically  enforced  in  a  court  of  equity. 
Ordinarily,  such  contracts  are  not  the  subject  of  an  action  for  their 
enforcement,  in  any  court.  That  there  may  be  extreme  cases, 
where  one  has  gained  an  unconscionable  advantage  by  enticing  a 
*  less-experienced  person  into  participation  in  an  illegal  transac- 


2  Steele  v.  North  Met.  Railw.  Law  Rep.,  2  Eq.  237. 


[*45] 


48  IMJKLIMINARY    ASSOCIATIONS.  PARTI. 

tion,  where  a  court  of  equity  will  compel  the  successful  party  to 
relinquish  the  fruits  of  the  fraud,  may  be  true.  But  the  general 
proposition  laid  down,  by  Lord  Eldon,  upon  this  subject,  in  the 
Vauxhall  Bridge  case,1  does  not  seem  to  gain  much  support  from 
the  case  cited  by  him.2 

•J.  It  seems  to  us  impossible  to  justify  such  contracts  beyond  the 
mere  Bale  of  a  definite  pecuniary  interest.  And  even  that,  it  would 
Beem,  should  be  secured  by  the  insertion  of  definite  provisions  in 
the  charter.  We  cannot  find  that  any  attempt  has  been  made  in 
this  country,  to  enforce  against  a  corporation  a  contract  made  with 
the  promoters  to  quiet  opposition  in  the  legislature.  That  it  is 
often  charged,  that  such  and  similar  contracts  are  made  by  the 
promoters  of  railway  projects  with  the  friends  of  rival  projects, 
and  other  opposers,  and  with  the  members  of  the  legislature  even, 
and  large  sums  of  money  disbursed  in  fulfilment  of  such  contracts 
which  are  expected  to  be  refunded  by  the  company,  and  which  are 
so  refunded  sometimes,  is  undeniable.  But  we  apprehend,  there  is 
in  this  country  but  one  opinion  in  regard  to  the  legality  and  de- 
cency of  such  contracts,  and  that  those  who  expect  to  profit  by  them 
have  far  too  much  sagacity  to  trust  their  redress  to  the  judicial 
tribunals  of  the  country.  But  that  turnpike  and  bridge  companies, 
and  existing  railways,  whose  profits  are  to  be  seriously  affected  by 
the  establishment  of  new  railways  and  land-owners,  whose  property 
is  to  be  affected  by  such  railways,  may  properly  stipulate  for  rea- 
sonable indemnity,  as  the  price  of  withdrawing  opposition,  there 
can  be,  wre  apprehend,  no  question.  But  it  seems  to  us,  that  the 
only  proper  mode  of  securing  this  indemnity  is,  by  the  insertion  of 
special  clauses  in  the  charter  of  the  new  company.  There  can  be 
no  question  in  regard  to  the  duty  of  courts  of  equity,  in  a  proper 

1  Ante,  §  7,  Jacob,  64. 

•  X'\  ille  v.  Wilkinson,  1  Brown  (C.  C),  543.  The  principle  of  this  case,  if  we 
comprehend  it,  is  a  familiar  one.  It  is  that  one  who  has  represented  to  a  creditor 
of  his  debtur,  or  to  the  father  of  the  intended  wife  of  his  debtor,  that  his  debt 
did  nol  exceed  a  specified  sum,  shall  not  be  allowed  to  enforce  against  such 
debtor  any  larger  sum,  the  marriage  having  taken  place  in  confidence  of  such 
representation.  This  representation  was  made,  indeed,  by  connivance,  between 
the  husband  and  his  creditor,  to  deceive  his  wife's  father.  But  so  far  as  the 
creditor  is  concerned,  the  decision  seems  to  rest  upon  the  familiar  principle  of 
an  estoppel  in  pais.  Shirley  v.  Ferrers,  cited  in  St.  John  v.  St.  John,  11 
V<  bi  ■ .  536. 
[*45] 


§  16.  CONTRACTS    AGAINST   SOUND   POLICY.  49 

case  *for  their  interference,  to  enforce  an  indemnity  secured  by  the 
act.3 

3.  We  infer  from  the  late  decision  of  the  House  of  Lords  upon 
this  subject,  that  the  views  of  the  courts,  in  that  country,  are 
already  undergoing  some  change  in  relation  to  it.  ■  In  the  case 
of  Caledonian  and  Dumbartonshire  Junction  Railway  v.  Helens- 
burgh Harbor  Trustees,4  the  facts  were  that  the  magistrates  of 
Helensburgh  agreed  with  the  provisional  committee  of  a  projected 
railway  company  to  allow  the  company  certain  privileges  of  taking 
land  in  the  town,  and  laying  rails  for  a  side  track  to  the  harbor  of 
H.,  the  company  to  pay  all  the  expenses  of  enlarging  the  harbor, 
and  of  obtaining  an  act  of  parliament  for  that  purpose.  The 
Harbor  Act  was  obtained,  and  also  the  Railway  Act.  In  the  latter 
there  was  no  provision  authorizing,  or  referring  to,  the  previous 
agreement,  and  the  railway  company  refused  to  perform  their  part, 
and  did  not  claim  performance  of  the  other  part. 

4.  On  a  bill  for  specific  performance,  brought  by  the  harbor 
trustees,  held,  reversing  the  decision  of  the  Court  of  Session,  that 
specific  performance  could  not  be  decreed,  because  the  railway 
company  had  no  power  to  make  a  harbor,  which  would  be  entirely 
beside  the  object  of  their  incorporation. 

5.  It  is  said  by  the  Lord  Chancellor,  and  by  Lord  Brougham, 
"  It  seems  that  Edwards  v.  The  Grand  Junction  Railway,  1  Railw.  C. 
173,  and  Lord  Petre  v.  The  Eastern  Counties  Railway,  Id.  462,  and 
other  similar  cases,  which  have  followed  them,  are  unsupported 
in  principle,  but  these  cases  are  distinguished  from  the  present, 
by  the  nature  of  the  contracts  sought  to  be  enforced,  which  were 
matters  within  the  scope  of  the  respective  charters.  The  custom 
sometimes  adopted  by  committees  in  parliament  of  omitting  spe- 
cial clauses  from  acts  of  incorporation,  on  the  agreement  of  the  pro- 
moters that  the  objects  proposed  to  be  attained  by  these  clauses 
should  be  carried  out,  appears  to  be  illegal,  and  improper." 

6.  It  seems  very  obvious,  that,  if  these  clauses  can  be  foisted 
into  the  act  of  incorporation,  by  oral  testimony,  at  the  will  of 
interested  parties,  it  is  exposing  the  operation  of  the  act  to  all  the 
inconveniences  and  inconsistencies  which  might  be   expected  to 

3  Gray  v.  The  Liverpool  &  Bury  Railway,  9  Beav.  391 ;  s.  c.  4  Railw.  C. 
235;  ante,  §  11. 

4  Before  the  House  of  Lords  in  June,  1856;  s.  c.  2  Macq.  H.  of  L.  391; 
s.  c.  39  Eng.  L.  &  Eq.  28. 

vol.,  4  [**6] 


50  PRELIMINARY   ASSOCIATIONS.  PART  I. 

*  follow  from  subjecting  written  contracts  to  the  same  mode  of 
exposition.  Sound  views  and  true  policy  seem  to  us  to  require  a 
strict  adherence  to  the  act  of  the  legislature,  as  in  other  cases. 

7.  And  it  is  very  questionable,  whether,  in  this  country,  the 
contract  to  sell  a  definite  pecuniary  interest,  —  as  land  which  is 
required  for  the  construction  of  the  road,  or  turnpike  and  canal 
property,  the  value  of  which  is  to  be  seriously  affected  by  the 
railway  going  into  operation,  —  at  a  price  agreed,  made  witli  the 
promoters  of  the  railway,  but  not  inserted  in  the  act,  and  which 
is  not  unreasonable,  can  be  enforced  against  the  company.  It  is 
certain,  we  think,  that  a  contract  going  altogether  beyond  this, 
and  stipulating  large  sums,  beyond  the  supposed  value  of  any 
pecuniary  interest  to  be  secured,  and  for  the  obvious  purp'ose  of 
quieting  opposition,  or  securing  favor  and  support,  could  not  be 
enforced  bere,  even  against  the  contracting  parties,  and  much 
less  against  the  company,  or  at  all  events  that  it  ought  not  to  be.5 

5  And  in  the  more  recent  cases  upon  this  subject  very  little  countenance  is 
given  to  the  doctrine  of  the  earlier  English  cases,  which  held  the  contracts  of  the 
promoters  of  railways  binding  upon  the  company,  upon  the  slightest  grounds  of 
adoption,  and  often  by  the  most  forced  constructions.  In  the  case  of  Preston  v. 
Liverpool,  Manchester  &  N.  Railway,  5  H.  of  L.  605;  s.  c.  35  Eng.  L.  &  Eq. 
92,  although  the  case  is  professedly  decided  upon  the  construction  of  the  par- 
ticular contract,  yet  it  is  not  difficult  to  perceive,  in  the  very  sensible  reasons 
assigned  for  the  construction  adopted,  a  manifest  disposition  to  abandon  the 
former  ground  assumed  by  the  courts  upon  this  subject.  The  point  is  thus  stated 
in  the  note  to  this  latter  case:  "  H.  &.  Y.,  projectors  of  a  railway  company, 
entered  into  a  treaty  with  the  plaintiff  (a  land-owner),  whereby  the  latter  agreed 
not  to  oppose  their  bill  in  parliament,  and  an  agreement  was  executed  by  them, 
as  the  executive  directors  of  the  railway  company,  by  which  the  company,  upon 
its  incorporation,  was  to  pay  t)  the  plaintiff  £1,000  for  land  of  which  he  was  the 
freeholder,  and  which  was  required  for  the  purpose  of  making  the  railway,  and 
£4,000  for  residential  damage."  There  were  other  stipulations  in  regard  to 
tunnelling  a  portion  of  plaintiff's  property,  and  erecting  a  station  upon  another 
portion.  The  company  was  incorporated,  but  not  being  able  to  raise  sufficient 
funds,  in.  attempt  was  made  to  construct  the  railway,  and  the  money  subscribed 
was  returned  to  the  shareholders.  "Held,  that  the  contract  was  conditional 
upon  the  making  of  the  railway,  and  therefore  that  the  plaintiff  was  not  entitled 
to  moneys  payable  thereunder.  And  qucere,  whether  a  company  can  be  con- 
sidered as  the  successors  or  assignees  of  the  projectors,  so  as  to  come  into  ex- 
istence subject  to  their  contracts."  See  Ed.  P.  &  Dundee  Railw.  v.  Philip,  2 
Macq.  H.  of  L.  514;  s.  c.  39  Eng.  L.  &  Eq.  41. 

Tie  r  ire  numerous  English  cases  upon  this  point  since  the  date  of  the  sec- 
ond edition  of  this  work.  In  Aldham  v.  Brown,  2  El.  &  El.  398,  in  Exchequer 
Chamber,  the  extent  of  the  responsibility  of  a  subscriber  to  the  preliminary 
[*47] 


§  16.  CONTRACTS   AGAINST   SOUND   POLICY.  51 

*  8.  Iii  an  English  case,0  decided  in  the  Exchequer  Chamber, 
reversing  the  decision  of  the  Court  of  Exchequer,  it  was  held, 

association  is  extensively  discussed  upon  an  extended  and  somewhat  refined  state 
of  pleadings.  The  result  may  be  briefly  stated  as  amounting  to  nothing  more  than 
that  such  subscriber  is  responsible  for  his  ratable  proportion  of  the  provisional 
expenses,  whether  the  scheme  is  finally  abandoned  or  not. 

Where  a  deposit  of  eight  per  cent  upon  the  estimated  cost  of  a  railway  is  paid 
into  court,  in  compliance  with  the  parliamentary  orders  upon  filing  petitions  for 
certain  railways,  the  proportion  of  such  deposit  will  be  paid  out  of  court  to  the 
party  duly  representing  the  petitioners,  upon  any  of  the  railway  projects  being 
abandoned.  Aberystwith  Railw.,  in  re,  7  Jur.  (N.  S.)  510.  But  upon  the  ques- 
tion being  brought  to  the  attention  of  the  Lords  Justices,  id.  564,  it  was  doubted 
whether  the  statute  allowed  the  money  to  be  repaid  merely  upon  the  withdrawal 
of  the  petition,  and  no  order  was  made.  But  upon  principle  it  would  seem 
there  could  be  no  difference  between  the  cases  named  specifically  in  the  statute 
for  repayment  of  the  money,  that  of  withdrawal  of  the  petition,  and  such  as 
denial  of  the  petition  or  refusal  to  allow  the  party  to  proceed.  See  Dartmouth 
&  Torbay  Railw.  Co.,  in  re,  9  Weekly  Rep.  609,  V.  C.  K.  It  is  no  objection 
that  the  requisite  parliamentary  deposit  is  made  from  borrowed  funds.  Scott  v. 
Oakely,  10  Jur.  (N.  S.)  431,  618.  And  a  court  of  equity  will  enforce  any 
agreement  made  with  the  lender  to  compel  the  repayment  of  such  deposit,  ib. 
But  an  agreement  by  an  existing  railway  to  contribute  towards  the  deposit 
required  to  promote  the  grant  of  other  lines,  is  held  ultra  vires.  So  also  is  an 
agreement  by  an  existing  railway  to  take  shares  in  the  projected  company,  or  to 
establish  traffic  regulations  with  reference  to  future  extensions.  But  such  an 
agreement  will  not  be  ultra  vires  where  its  validity  is  expressly  made  dependent 
upon  the  sanction  of  parliament.  Maunsell  v.  M.  Great  Western  (Ireland) 
Railw.  Co.,  1  H.  &  M.  130 ;  s.  c.  9  Jur.  (N.  S.)  660.  See  Scottish  N.  E.  Railw. 
v.  Stewart,  3  Maeq.  H.  L.  Cas.  382.  But  where  the  company  stipulate  to  do  acts 
ultra  vires,  there  is  no  implication  that  this  stipulation  shall  be  held  conditional 
upon  the  company  having  or  being  able  to  obtain  legislative  authority  to  do 
them.  And  if  the  acts  so  stipulated  to  be  done  are  component  parts  of  an  entire 
agreement  embracing  other  matters  within  the  powers  of  the  company,  an  in- 
junction will  be  granted  against  carrying  any  portion  of  the  agreement  into  effect. 
Hattersley  v.  Shelburne  (Earl),  7  Law  T.  (N.  S.)  650.  Where  six  different  lines 
of  railway,  forming  one  general  scheme,  were  promoted  by  the  same  persons,  but 
subsequently  four  of  them  abandoned,  and  an  act  obtained  authorizing  the  con- 
struction of  the  other  two,  by  which  it  was  provided  that  the  expenses,  costs,  and 
charges  of  obtaining  and  passing  the  act,  and  incidental  and  preparatory  thereto, 
should  be  paid  by  the  incorporated  company ;  it  was  held  the  costs  and  expenses 
connected  with  the  abandoned  lines  were  properly  chargeable  on  the  company. 
Tilleard,  in  re,  32  Beav.  476  ;  s.  c.  9  Jur.  (N.  S.)  1217. 

6  Taylor  v.  Chester  &  Midhurst  Railw.  Law  Rep.,  2  Exch.  356.  Willes  and 
Blackburn,  JJ.,  dissenting.  This  judgment  was  reversed  in  the  House  of  Lords, 
and  judgment  rendered  for  the  plaintiff.  Law  Rep.  4  Ho.  Lds.  628.  But  the 
doctrine  of  the  Exchequer  Chamber  is  more  in  conformity  with  the  American 
cases  than  that  of  the  House  of  Lords.     Ante,  §  12,  n.  4. 

[*48] 


PRELIMINARY    ASSOCIATIONS.  PART  I. 

thai  a  contract  by  the  company  to  pay  £2,000  to  a  land-owner, 
*  who  opposed  the  company  in  obtaining  parliamentary  powers  for 
extending  their  line,  for  the  injury  he  had  or  might  sustain,  in 
respect  of  the  preservation  of  the  game  on  his  estate,  by  reason  of 
the  proposed  extension,  was  ultra  vires  and  did  not  bind  the  com- 
pany, the  covenant  being  absolute  and  not  depending  on  the  build- 
ing of  the  railway,  and  the  funds  of  the  company,  being  botli  by 
the  original  and  the  new  act  appropriated  to  specific  purposes, 
which  did  not  include  the  consideration  of  this  contract. 

9.  There  is  an  American  case,7  where  it  was  held,  that  an 
indemnity  secured  by  a  railway  company  to  an  individual,  to  quiet 
opposition  before  the  legislature,  for  the  mere  purpose  of  protect- 
ing a  private  interest,  and  the  party  is  thereby  induced  to  forego 
his  opposition,  that  the  indemnity  will  be  enforced,  unless  the  case 
presented  an  instance  where  the  legislature  was  thereby  exposed 
to  be  misled,  and  to  do  what  it  otherwise  would  not  have  done. 

7  Low  v.  Conn.  &  Pass.  Railw.,  46  N.  H.  284;  8.  c.  45  id.  370,  1  Redf.  Am. 
Lead.  Railw.  Cases,  1 :  ante,  §  13,  n.  2. 


[*49] 


PART   II. 

THE     LAW     OF     CORPORATIONS. 


PART    II. 


THE     LAW     OF     CORPORATIONS. 


*CHAPTEk    III. 


EAILWAYS   AS   CORPORATIONS. 


SECTION    I. 


Origin  and  Different  Classes  of  Corporations. 


1.  The  existence  of  corporations  dates  very 

early. 

2.  The  different  hinds  of  corporations.    Sole 

and  aggregate. 

3.  This    work   treats    chiefly  of  aggregate 

joint-stock  corporations. 

4.  Corporations   are   either   ecclesiastical  or 

lay. 

5.  So  they  are  divided  into  eleemosynary  and 

civil  corporations. 

6.  Corporations  are  public  or  private. 

7.  Private  corporations,  where  stock  is  pri- 

vate property. 


8.  Public  corporations,  where  stock  is  owned 

and  the  management  retained  by  the 
state. 

9.  It  does  not  affect  the  private  character 

of  a  corporation  that  the  state  or  the 
United  States  own  a  portion  of  the 
stock. 

10.  Distinction  between  corporations  and  part- 

nerships.    The  latter  defined. 

11.  Further  definition  of  the  distinction  be- 

tween corporations  and  partnerships. 


§  17.  1.  The  idea  of  corporate  action,  i.  e.  by  means  of  mere 
legal  entities,  or  creations  of  the  law,  seems  to  have  existed  from 
a  very  early  day  in  the  history  of  civilization.  They  seem  to  have 
been  allowed  by  the  laws  of  Solon,  and  by  those  of  the  Twelve 
Tables ;  and  may  very  probably  have  existed  at  a  still  earlier 
period.1 

2.  There  have  existed  various  kinds  of  corporations,  distin- 
guished sometimes  by  the  form  of  the  association  or  the  nature  of 
the  organization,  and  sometimes  by  the  character  of  the  work  to 


1  1  Kent,  Comm.  524.  The  8th  Table  allowed  societies  or  private  companies 
to  make  their  own  by-laws,  not  being  inconsistent  with  the  public  law.  See  also 
2  Kent,  Comm.  268,  note ;  Dig.  Rom.  Civ.  Law,  47,  22,  4. 

[*50] 


RAILWAYS    AS   CORPORATIONS.  PART  II. 

which  the  corporate  body  was  devoted.  Thus  corporations,  in  the 
English  law,  are  either  sole  or  aggregate.  By  the  former  is  under- 
atood  corporations  existing  in  a  single  individual,  as  the  rector 
of  a  church,  or  the  judge  of  a  particular  court,  as  the  judge  of 
probate  in  whose  name  securities  are  taken  and  to  be  prosecuted, 
or  any  other  official  name,  as  the  treasurer  of  a  town,  county,  &c, 
in  all  which  cases  the  single  individual,  maintaining  for  the  time 
the  particular  official  relation,  constitutes  the  quasi  corporation. 
Aggregate  corporations  are  where  the  body  consists  of  more  than 
*  one  member,  whether  such  members  are  shareholders,  as  in  the 
case  of  a  mere  business  corporation,  or  are  composed  of  different 
subdivisions  of  the  entire  corporation  ;  as  the  mayor,  aldermen, 
and  common  council  of  a  city  or  other  municipality.2 

■">.  The  corporations  with  which  we  are  chiefly  concerned,  and 
which  will  be  mainly  considered  in  the  following  work,  are  aggre- 
gate business  corporations,  with  a  joint-stock  capital,  such  as 
banks,  railways,  manufacturing  and  other  similar  organizations. 

4.  But,  as  almost  all  kinds  of  corporations  have  in  some  sense 
analogous  powers  and  functions,  it  will  not  be  practicable  to  dis- 
cuss the  law  applicable  to  one  class  without  at  the  same  time,  to 
some  extent,  considering  the  law  applicable  to  all  other  classes  of 
corporations.  It  may  be  proper  therefore  to  mention  here,  that 
aggregate  corporations  may  be  ecclesiastical  or  lay,  i.  e.  their 
functions  may  have  reference  exclusively  to  religious  matters,  as  a 
parish  or  church,  whereby  they  are  appropriately  designated  as 
ecclesiastical  or  religious  bodies ;  or  they  may  have  reference  only 

*  Co.  Litt.  8  b,  250  a;  2  Kent,  Comm.  273,  274.  We  have  taken  no  time  to 
discuss  the  nature  or  importance  of  sole  corporations,  since  very  few  exist  in  the 
American  states,  and  where  any  such  do  exist,  it  is  so  enacted  by  express  statute, 
in  order  to  secure  perpetual  succession  and  transmission  of  rights  and  duties, 
without  encumbering  the  succession  and  transmission  with  those  formalities  which 
would  always  prove  laborious  and  sometimes  difficult;  and  by  reason  thereof, 
there  would  constantly  arise  embarrassing  questions,  which,  by  declaring  the 
office  a  perpetual  corporation,  is  wisely  saved.  In  many  of  the  cases  already 
alluded  to,  and  others  which  might  be  named,  as  to  those  individuals  who  sustain 
the  official  character  of  sole  corporations,  it  is  not  deemed  important  that  the 
Statute  conferring  such  functions  should  declare  them  corporations,  or  to  possess 
corporate  rights  and  duties.  All  that  is  required  is,  that  it  should  be  provided 
that  contracts  made  to  them  may  be  sued  in  the  name  of  their  official  successors, 
or  that  in  any  other  form  such  individual  should  be  declared  by  his  official  name 
to  have  the  power  to  contract  for  the  benefit  of  himself  and  his  successors,  per- 
petuallv. 

[♦51] 


§  17.  ORIGIN    AND    DIFFERENT    CLASSES    OF    CORPORATIONS.  57 

to  secular  matters,  whereby  they  are  more  appropriately  denomi- 
nated lay  corporations.  The  distinction  is,  however,  sometimes 
not  easily  determined,  since  the  business  and  functions  of  a  cor- 
poration may  approach  so  nearly  the  one  or  the  other  as  not  in- 
appropriately to  be  classed  among  cither.  Thus  the  English 
Universities  of  Oxford  and  Cambridge  are  now  regarded  as  merely 
lay  or  civil  corporations,  although  at  one  time  they  were,  with 
propriety,  classed  among  ecclesiastical  corporations.3 

*  5.  Corporations,  too,  are  divided  into  eleemosynary,  or  such  as 
disburse  only  charity  and  subsist  for  that  purpose  only,  —  such  as 
schools,  colleges,  and  hospitals,  —  and  those  which  are  of  a  busi- 
ness or  pecuniary  character,  called  civil  or  political  bodies,  intrusted 
with  certain  rights  or  duties,  and  required  to  perform  certain 
functions,  more  or  less  connected  with  the  polity  of  the  state  or 
nation,  —  such  as  towns,  counties,  school  districts,  or  railways, 
banks,  and  manufacturing,  or  merely  business  corporations. 

6.  Corporations  are  either  public  or  private.  Public  corpora- 
tions embrace  all  the  municipal  subdivisions  of  the  state  ;  such  as 
counties,  towns,  and  cities,  and  school  districts,  and  other  similar 
organizations.  Private  corporations  include  all  aggregate  joint- 
stock,  incorporated  companies,  whose  capital  stock  is  owned  by 
private  persons.  But  such  joint-stock  corporations  as  possess  no 
shares  not  owned  by  the  state  or  nation  are  also  regarded  as  public 
corporations,  the  same  as  the  municipalities  of  the  state.  The 
law  in  regard  to  railways  was  thus  stated  in  the  former  edition  of 
this  work. 

7.  Railways 4  in  this  country,  although  common  carriers  of 
freight  and  passengers,  and  in  some  sense  regarded  as  public 
works,  are  ordinarily  private  corporations.5  By  private  corpora- 
tions nothing  more  is  implied,  than  that  the  stock  is  owned  by 
private  persons. 

»  Angell  &  Ames,  §  40';  1  Bl.  Comm.  471. 

4  There  is  no  necessity  for  these  public  functions  being  confined  to  aggregate 
corporations,  as  is  the  universal  practice  in  this  country.  The  same  franchises 
and  immunities  might  be  conferred  upon  any  private  person,  at  the  election  of 
the  legislature,  as  was  done  by  the  legislature  of  New  York  upon  Fulton  and 
Livingston,  in  regard  to  steamboat  navigation,  which  grant  was  held  valid  but  for 
the  United  States  Constitution.  And  whoever  was  the  grantee,  the  same  rights, 
duties,  and  liabilities  would  result  from  the  grant,  whether  to  a  natural  person  or 
to  a  corporation. 

6  Ante,  §  1,  pi.  6. 

[•52] 


58  RAILWAYS   AS   CORPORATIONS.  PART  II. 

8.  If  the  stock  is  owned  exclusively  by  the  state,  the  corpora- 
tion is  a  public  one.  And  such  public  corporations  are  under  the 
control  of  the  legislature,  the  same  as  municipal  corporations,  and 
ordinarily  acquire  no  such  vested  rights  of  property  as  are  beyond 
the  control  of  legislative  authority.6  The  American  cases  going 
*  to  confirm  this  proposition,  and  to  show  that  railways  are  private 
corporations,  are  numerous.7 

"  Dartmouth  College  p.  Woodward,  4  Wheaton,  518,  568 ;  2  Kent,  Comm. 
7th  ed.  (275)  : 505  and  notes.  If  the  question  were  entirely  new,  it  might  be  re- 
garded  as  admitting  of  some  doubt,  perhaps,  how  far  the  American  states  could 
with  propriety  undertake  such  extensive  public  works,  whose  benefit  enures 
almost  exclusively  to  private  emolument  and  advantage.  But  the  practice  is  now 
pretty  firmly  established.  And  there  seems  to  be  no  proper  tribunal  to  determine 
questions  between  the  states  and  the  citizens.  Public  opinion  is  the  only 
practical  arbiter  in  such  cases.  And  that  is  so  much  under  the  control  of  inter- 
ested parties,  ordinarily,  that  its  admonitions  are  not  likely  to  be  much  dreaded 
by  those  who  exercise  the  state  patronage. 

7  Donnaher  v.  State  of  Mississippi,  8  Smedes  &  M.  649,  661.  By  the  court,  in 
Trustees  of  the  Presbyt.  Society  of  Waterloo  v.  Auburn  &  Rochester  Railw.,  3  Hill, 
570;  Dartmouth  Coll.  v.  Woodward,  1  N.  H.  Ill,  116;  Eustis  v.  Parker,  1 N.  H. 
27;; :  Dearborn  v.  Boston,  C.  &  Montreal  Ptailw.  Co.,  4  Foster,  179,  190;  Ohio, 
&c.  Railroad  Co.  v.  Ridge,  5  Blackf.  78;  Bonaparte  v.  Camden  &AmbovR.,  1  Bald- 
win's C.  C  205,  222;  Rundle  v.  Delaware  &  Raritan  Canal  Co.,  1  Wallace,  Jr.  . 
275  :  K.  &  G.  R.  v.  Davis,  2  Dev.  &  Batt.  451 ;  Thorpe ».  R.  &B.  R.,  27  Vt.  140; 
s.c.  1  Redf.  Am.  Railw.  Cases,  587.  This  last  case  discusses  at  some  length  the 
right  of  legislative  control  over  private  corporations,  whose  functions  are  essen- 
tially pub  ic,  like  th  se  of  banks  and  railways.  The  importance  of  such  control, 
with  n  reasonable  limits  and  under  proper  restrictions,  both  to  the  public  interest 
ami  that  of  these  corporations,  will  be  obvious  when  we  consider  the  magnitude  of 
the  intere  ts  committed  to  such  corporations,  and  the  vast  amount  of  capital 
invest  d  in  bu  h  enterprises.  We  make  no  account  of  the  banking  capital  of  the 
country,  most  of  which  is  occupied  in  business  more  or  less  connected  with  rail- 
way traffic.     But  the  capital  and  business  of  railways  is  almost  incalculable. 

The  length  of  railway  in  the  United  Kingdom  of  Great  Britain  and  Ireland 
in  1857,  was  8,635  miles,  and  the  cost,  in  round  numbers,  £311,000,000  sterling, 
being  more  than  one  and  one-half  billion  of  dollars.  The  amount  invested  in 
this  country  was  about  half  as  much  in  1851,  and  the  number  of  miles  in  opera- 
nt' nly  twice  as  great,  and  almost  as  much  more  then  in  progress,  a  large 
portion  of  which  is  now  complete  (1857).  When  it  is  considered  that  these 
private  corporations,  possessing  such  vast  capital,  have  engrossed  almost  the 
entir.-  travel  and  traffic  of  the  country,  and  that  their  powers  and  functions  come 
in  daily  contact  with  the  material  interests  of  almost  every  citizen  of  this  great 
empire,  the  importance  of  their  being  subjected  to  a  wise  and  just  supervision 
can  scarcely  be  over-estimated.  This  can  only  be  permanently  secured  by  wise 
and  prudent  legislation.  And  to  be  of  much  security  to  public  interests,  it  must 
be  by  general  acts,  as  it  is  in  many  of  the  states,  and  in  England,  since  1845.     It 

[•53] 


§  17.  ORIGIN   AND    DIFFERENT   CLASSES   OF   CORPORATIONS.  59 

*  9.  It  does  not  alter  the  character  of  a  private  corporation, 
that  the  state  or  the  United  States  own  a  portion  of  the  stock.8 

is  worthy  of  remark,  we  think,  that  while  in  the  United  States  a  large  proportion 
of  the  capital  invested  in  railways  has  proved  hitherto  wholly  unproductive,  and 
much  of  it  has  already  proved  a  hopeless  loss,  and  a  very  small  proportion  of  the 
whole  can  be  said  to  have  been  at  all  remunerative,  in  Great  Britain  the  whole 
amount  of  their  loan  and  preference  stock,  secured  virtually  by  way  of  mortgage, 
has  produced,  upon  an  average,  more  than  five  per  cent,  and  the  ordinary  stock 
has  produced  an  average  dividend  of  more  than  three  per  cent ;  and  in  France 
railways  have  proved  still  more  productive,  making  average  dividends  through- 
out the  empire,  for  the  year  1857,  of  nine  per  cent  upon  the  whole  investment, 
some  as  high  as  sixteen  per  cent,  and  one,  the  Lyons  and  Marseilles  line,  twenty- 
three  per  cent.  It  is  difficult  to  account  for  the  difference  in  results,  without 
suspecting  something  wrong  somewhere.  Since  the  former  edition  of  this  work, 
•  considerable  advance  has  been  made  in  railway  enterprise  throughout  the  world. 
Railways  have  become  (1858)  so  nearly  a  military  necessity,  in  order  to  enable 
any  nation  of  considerable  power  and  prominence  in  relative  national  position  to 
maintain  its  due  weight  and  importance,  that  very  extensive,  and  in  some  in- 
stances vast,  works  of  that  kind  have  been  accomplished,  mainly  upon  that  ground. 
The  experience  of  the  national  government  during  the  late  civil  war  has  removed 
all  question  of  the  right  of  that  government  to  charter  and  construct,  or  aid  in 
the  construction  of,  extensive  and  independent  lines  throughout  the  country  for 
military  and  mail  purposes  alone.  It  is  stated  that  the  present  length  of  railway 
line  in  the  United  States  is  about  32,000  miles,  at  an  average  cost  of  $40,000 
per  mile,  equal  to  $1,280,000,000  in  all,  and  there  is  every  reason  to  believe  the 
Atlantic  and  Pacific  coasts  will  speedily  be  united  by  railway.  The  advance  in 
Great  Britain  and  Ireland  has  been  very  great  since  the  first  edition  of  this  work, 
but  probably  not  in  the  same  proportion  as  here. 

The  number  of  miles  of  railway  now  (1867)  in  operation  in  France  is  about 
8,000,  at  a  cost  of  nearly  $1,300,000,000,  and  producing,  according  to  the  late  re- 
turns of  the  Minister  of  Public  Works,  a  net  income  or  dividend  of  nearly  nine  per 
cent.  This  is  the  same  rate  of  income  produced  by  the  French  railways  in  1858, 
as  stated  above.  The  average  income  from  railway  investment  in  Great  Britain 
and  Ireland  is  probably  not  above  half  that  sum ;  and,  in  the  United  States,  it  is 
perhaps  even  below  that.  But  our  country  is  so  immensely  extensive,  and  easy 
and  rapid  intercommunication  between  all  portions  of  the  empire  so  much  a  state 
necessity,  that  it  might  naturally  be  expected  that  for  a  long  time  considerable 
portions  of  the  line  should  remain  unproductive  in  a  pecuniary  point  of  light. 
There  have  been  great  changes  in  the  policy  of  railway  construction  and  man- 
agement since  this  work  first  appeared,  and  mainly  in  the  right  direction.  Reck- 
less and  destructive  railway  management  is  now,  we  trust,  becoming  the  rare 
exception  in  this  country ;  although  there  is  still,  no  doubt,  great  room  for  im- 


8  Bank  of  the  United  States  v.  The  Planters'  Bank  of  Georgia,  9  Wheat.  904 ; 
Miners'  Bank  v.  United  States,  1  Greene  (Iowa),  553;  Turnpike  Co.  v.  Wallace, 
8  Watts,  316 ;  Bardstown  &  Lou.  Railway  v.  Metcalfe,  4  Met.  (Ky.)  199. 

[*54] 


GO  B  \  II.  WAYS   AS   CORPORATIONS.  PART  II. 

•  Bui  a  turnpike  company  or  other  corporation,  managed  exclu- 
sively by  state  officers,  and  at  the  expense  and  for  the  benefit  of 
-■  ite  at  large,  is  a  public  corporation.9 
LO.  The  legal  distinction  between  a  corporation  and  a  copart- 
nership is  marked  and  important.  A  mere  partnership  is  the 
result  of  voluntary  association  between  two  or  more  persons,  to 

provement.  There  is  probably  no  other  country  in  the  world  where  it  is  so 
difficult  to  bring  the  employe's,  and  others  connected  in  various  relations  with 
railway  management,  to  understand  and  appreciate  the  indispensable  importance 
of  bringing  every  thing  to  the  unbending  control  of  a  single  will.  This  is  not 
only  indispensable  for  success,  but  equally  for  security. 

From  authentic  sources  it  now  (18G9)  appears  that  the  extent  of  railway  in 
operation  in  Europe  is  not  less  than  50,000  miles.  Of  this,  Great  Britain  has 
1  1,000  miles,  at  a  cost  of  £500,000,000  sterling;  France  has  nearly  10,000  miles; 
Germany,  including  Austria,  13,000  miles;  Spain,  3,000  miles;  Sweden,  1,000 
miles;  Belgium,  1,000  miles;  Switzerland  and  Holland,  each,  less  than  1,000 
miles;  and  Italy  about  3,000  miles;  and  Eussia  nearly  3,000  miles.  There  are 
also  more  than  3,000  miles  of  railway  in  British  India;  about  that  extent  in  the 
Canadas;  and  there  is  more  than  half  the  extent  of  railway  line  in  the  United 
States  that  there  is  in  all  the  rest  of  the  world;  and  -when  the  three  lines  of 
Pacific  railway  ^hall  be  completed,  the  extent  will  fall  little  short  of  equalling 
that  of  all  the  rest  of  the  world.  But  a  very  large  proportion  of  it  is  constructed 
with  only  a  single  track,  and  much  of  it  is  very  imperfectly  built,  and  has  not 
pro\ed  remunerative  as  a  general  rule.  But  it  is  the  controlling  interest  of  the 
country,  far  more  important  than  any  other  pecuniary  or  political  interest,  both 
in  peace  and  in  war,  and  without  which  it  is  impossible  to  calculate  what  might 
have  been  the  result  of  the  late  civil  war. 

From  the  annual  report  of  the  English  Board  of  Trade,  1871,  in  regard  to 
British  railways,  it  appears  that  there  are  15,537  miles  in  the  United  Kingdom: 
viz.  LI, 043  miles  in  England  and  Wales;  2,519  in  Scotland;  and  1,975  miles  in 
Ireland.  The  capital  stock  of  all  these  companies  amounts  to  nearly  £600,000,- 
000  sterling,  or  about  83,000,000,000.  The  gross  income  of  these  companies 
-  three-fifths  of  that  of  Great  Britain  and  Ireland.  The  gross  earnings  of 
1  •  English  companies  exceed  that  of  the  income  of  some  of  the  smaller 
or  medium  Mate-  of  Europe ;  that  of  the  London  &  Northwestern  being  £7,014,- 
703,  almost  exactly  the  same  as  the  national  income  of  Belgium. 

i  tide  in  the  American  Railway  Times  (1872),  it  would  seem 
that  the  United  States  have  now  in  operation  48,860  miles  of  railway,  and  27,505 
mdes  more  in  process  of  building  or  already  projected.  Another  account  esti- 
mate- the  length  of  railway  in  operation,  January  1,  1871,  at  53,399  miles;  it 
may  be  safe  now,  to  place  it  at  50,000  miles,  in  round  numbers.  Upon  the  same 
authority  it  i-  estimated,  thai  there  is  in  operation  in  Prussia  an  extent  of  rail- 
way of  nearly  8, I  English  miles. 

e  '•.  North  W.  Turnpike  Co.,  10  Leigh,  454.  But  see  Toledo  Bank  v. 
Bond,  1  Ohio  (N.  S.),  622,  657.  Opinion  of  Storrs,  J.,  in  Bradley  v.  New  Y. 
&  New  II.  Kailw.,  21  Conn.  294,  304,  305. 

[*o5] 


§  17.  ORIGIN   AND    DIFFERENT   CLASSES   OF   CORPORATIONS.  61 

invest  their  capital  and  labor  in  the  joint  conduct  of  any  business, 
mercantile  or  otherwise,  either  for  a  definite  or  indefinite  time, 
according  to  the  terms  of  the  organic  contract.  This  contract  may 
be  in  writing  or  merely  oral,  and  requires  no  legislative  sanction 
to  give  it  validity.10  The  result  of  such  an  association  is  to  create 
a  joint  interest  both  in  the  capital  and  the  business,  unless  there 
is  some  special  stipulation  as  to  the  property  remaining  in  those 
of  the  partners  who  furnish  the  capital.  The  several  partners  also 
become  responsible  for  all  the  debts  and  legitimate  contracts  of  the 
partnership;  unless  in  special  and  limited  partnerships,  where, 
under  certain  conditions,  the  special  partners  are  not  liable  for 
the  partnership  contracts  beyond  the  amount  of  the  capital  invested 
by  them.11 

11.  But  the  organization  of  a  corporation  is  essentially  different. 
The  individual  members  or  corporators  are  not  responsible,  except 
by  special  statute,  and  that  is  an  anomaly,  for  any  of  the  acts  of 
the  corporation.  The  corporators  are,  so  to  speak,  merged  in  the 
abstract  being  created  by  the  act  of  incorporation,  and  can  do  no 
act  binding  the  corporation  except  in  accordance  with  the  organic 
law  by  which  this  artificial  being  is  created.  And  the  corporation 
receives  its  powers  and  functions  solely  from  the  act  of  incorpora- 
tion ;  and  this  act  must,  in  all  cases,  emanate,  either  directly  or 
indirectly,  from  the  legislative  power  of  the  state  or  nation,  and 
cannot  be  created  by  any  mere  contract  among  the  members,  as 
in  the  case  of  copartnerships.  These  principles  are  so  elementary 
and  fundamental  to  the  very  existence  of  corporations  as  scarcely 
to  require  to  be  stated,  much  less  to  be  fortified  by  authority.12 

10  Story  on  Part.  §§  2,  3,  and  cases  cited. 

11  Coope  v.  Eyre,  1  II.  Bl.  37,  48,  where  Lord  Loughborough,  C.  J.,  defines  a 
partnership  to  be  a  sharing  both  in  profit  and  loss,  and  says  that  limited  partner- 
ships are  not  allowed  in  England,  although  upheld  upon  the  continent.  But  the 
law  is  now  otherwise  by  special  statute  both  in  England  and  America.  But, 
independent  of  statute,  all  the  partners  are  responsible  for  all  the  liabilities  of  the 
concern.     Angell  &  Ames,  §  41  et  seq.,  and  cases  cited. 

12  Angell  &  Ames,  §  591  et  seq.      And  however  extensive  a  joint-stock  com- 
pany is,   in  point  of  members,  it  is  responsible  as  a  mere  partnership,  unless 
incorporated  by  act  of  the  legislature  or  under  some  general  statute.     Williams 
.  Bank  of  Michigan,  7  Wend.  539,  542. 

[*55] 


62  RAILWAYS   AS    CORPORATIONS.  PART  II. 


SECTION    II. 


Mow  Corporations  are  created. 


Corporations  created  by  grant  of  the  sov- 
iiij.     This  may  be  proved,  by  im- 
Hon  or  by  presumption. 
The  sovereignty  may  establish  corporations 
by  general  act,  or  delegation  or  procura- 
tion. 
Different  forms   of  defining  a  corpora- 


4.  The  corporate  action  of  corporations  re- 

stricted  to  state  creating  them. 

5.  It  may  act  by  its  directors  and  agents  in 

other  states. 
n.  10.  But  cannot  properly  transfer  its  entire 
busitiess  to  another  state. 

6.  A  college  located  at  one  place  cannot  es- 


tion.  tablish  a  branch  at  another. 

§  IT  a.  1.  Strictly  speaking,  corporations  can  only  be  created 
by  the  authority  of  the  sovereignty,  either  state  or  national.1 
Hence,  the  ordinary  mode  of  creating  joint-stock  business  corpora- 
tions is  by  charter,  by  way  of  legislative  act  of  the  several  states. 
But  as,  in  some  cases,  the  record  of  such  charters  may  not  have 
been  preserved,  and,  in  other  cases,  the  grant  of  corporate  powers 
*  may  have  been  by  way  of  implication  rather  than  express  legisla- 
tive act,  the  courts  have  allowed  corporations  to  prove  their  cor- 
porate character  and  capacity,  by  evidence  that  such  character  and 
capacity  is  reasonably,  or  necessarily,  implied  from  other  legislative 
action ; 2  or  else,  that  its  existence  is  fairly  to  be  presumed  from 
the  long  continuance  of  its  unquestioned  exercise.3 

2.  The  legislature  may  create  corporations  by  general  acts  of 
incorporation,  as  they  are  called,  whereby  a  given  number  of  per- 
sons, by  forming  an  association  in  a  prescribed  form,  shall  become 
possessed  of  corporate  powers,  for  certain  defined  objects  and  pur- 
poses. This  is  common,  in  many  of  the  states,  as  to  ecclesiastical 
and  charitable,  or  benevolent  associations,  and  not  unfrequently 

1  As  the  national  sovereignty  is  limited  to  the  subjects  and  powers  enumerated 
in  the  Constitution,  and  such  implied  powers  as  are  requisite  to  the  successful 
exercise  of  those  expressly  granted ;  and  as  no  general  power  to  create  corpora- 
tions is  expressly  given,  the  construction  of  the  court  of  last  resort  upon  these 
questions,  established  at  an  early  day,  is,  that  Congress  can  charter  only  such 
corporations  as  are  fairly  to  be  esteemed  necessary  to  the  successful  accomplish- 
ment of  its  delegated  powers  and  functions.  McCulloch  v.  Maryland,  4  Wheat. 
316;  Osborn  v.  Bank  of  United  States,  9  Wheat.  733. 

2  Conservators  of  the  Tone  v.  Ash,  10  B.  &  Cr.  349. 

3  Dillingham  v.  Snow,  5  Mass.  547  ;  2  Kent,  Comm.  277  ;  1  Bl.  Comm.  473. 

[*56] 


§  17  a.  HOW  CORPORATIONS  ARE  CREATED.  63 

as  to  banking,  railway,  and  other  business  corporations.  And 
although  at  one  time  questioned,  it  seems  now  conceded,  that  the 
sovereign  authority  may  grant  to  any  one  the  power  to  erect  cor- 
porations to  an  indefinite  extent,  upon  the  maxim  :  Qui  facit  per 
alium  facit  per  se.  This  power  is  given  to  the  Chancellor  of  the 
University  of  Oxford,4  and  exists  in  many  other  forms. 

3.  A  corporation  is  defined  by  Lord  Holt,  C.  J.,5  as  an  em 
civile,  a  corpus  politicum,  a  persona  politica,  a  collegium,  an  univer- 
sitas,  a.  jus  hdbendi  et  agendi.  A  corporation  is  well  defined,  as  to 
the  general  sense  of  the  term,  by  Chief  Justice  Marshall?  as  "  an 
artificial  being,  invisible,  intangible,  and  existing  only  in  contem- 
plation of  law."  It  is,  in  fact,  the  mere  creature  or  creation  of 
the  law.  Endowed  by  its  charter  with  the  capacity  of  performing 
certain  functions,  and  having  no  rights,  and  possessing  no  powers, 
except  those  conferred  by  the  sovereignty  by  which  it  was  created. 

4.  It  is  upon  this  ground,  that  it  has  been  declared,  upon  the 
most  unquestionable  basis,  both  of  principle  and  authority,  that  a 
"  corporation  can  have  no  legal  existence  out  of  the  boundaries  of 
the  sovereignty  by  which  it  is  created."  7  "  It  exists  only  in  con- 
templation *  of  law,  and  by  force  of  the  law ;  and  where  that  law 
ceases  to  operate,  and  is  no  longer  obligatory,  the  corporation  can 
have  no  existence.  It  must  dwell  in  the  place  of  its  creation,  and 
cannot  migrate  to  another  sovereignty."  And  the  same  thing, 
substantially,  is  repeated  in  another  case8  by  Mr.  Justice  Thomp- 
son. But  a  corporation  may  transact  business  in  a  foreign  state  or 
country,  and  may  be  there  sued  in  relation  to  the  same.9 

5.  There  seems  to  be  no  question  but  the  corporation  may  act, 
by  its  directors,  agents,  and  servants,  beyond  the  limits  of  the 

4  1  Bl.  Coram.  474. 

5  Anonymous,  3  Salk.  102. 

6  Dart.  College  v.  Woodward,  4  Wheat.  518.  The  same  learned  judge,  in 
another  place,  Providence  Bank  v.  Billings,  4  Pet.  (U.  S.)  514,  thus  comments 
upon  the  purposes  of  acts  of  incorporation  :  "  The  great  object  of  an  incorpora- 
tion is,  to  bestow  the  character  and  properties  of  individuality  on  a  collective 
and  changing  body  of  men." 

7  Taney,  C.  J.,  in  Bank  of  Augusta  v.  Earle,  13  Pet.  (U.  S.)  519,  588. 

8  Runyanv.  Lessee  of  Coster,  14  Pet.  (U.  S.)  122,  131.  The  same  doctrine  is 
maintained  in  other  American  cases,  Miller  v.  Ewer,  27  Me.  509 ;  Farnuin  v. 
Blackstone  Canal  Co.  1  Sumn.  (C.  C.)  46;  Day  v.  Newark  India  Rubber  Co.,  1 
Blatchf.  (C.  C.)  628. 

9  Newby  v.  Colt's  Patent  Fire-Anns  Co.,  L.  R.,  7  Q.  B.  293. 


(J4  RAILWAYS    AS   CORPORATIONS.  PART  II. 

sovereignty  by  which  it  was  created,10  but  its  first  meeting,  and  all 
its  subsequent  meetings,  in  order  to  bind  absent  and  dissenting 
members,  Bhould,  it  would  seem,  be  held  within  the  limits  and 
jurisdiction  of  the  sovereignty  creating  the  corporation.11  But 
in  one  case  in  New  Jersey,  Hilles  v.  Parrish,12  the  general  rule 
is  reaffirmed,  that  a  corporation  can  hold  no  meeting  and  trans- 
act no  corporate  business,  except  within  the  state  from  which 
*  they  derive  their  charter.  And  it  was  h^'e  further  held,  that  a 
resolution  of  the  directors,  at  a  meeting  held  out  of  the  state  where 
the  corporation  was  created,  for  the  purpose  of  transferring  stock 
to  sonic  of  their  own  number,  was  wholly  inoperative.  But  the 
court  declined  to  enjoin  those  holding  under  such  title  from  voting 
at  the  election  of  corporate  officers,  until  all  parties  could  be  heard 
upon  the  question  of  title. 

6.  But  a  college  of  learning,  established  in  a  particular  place, 
has  no  power  to  establish  a  branch,  for  one  of  its  departments  or 
faculties,  at  a  different  place.  It  was  accordingly  held,  that 
Geneva  College,  at  Geneva,  N.  Y.,  could  not  establish  a  medical 
school  in  the  city  of  New  York.15 

10  M'  Call  v,  Byram  Manuf.  Co.,  6  Conn.  428.  It  was  held  in  this  case,  that 
the  directors  of  a  manufacturing  corporation  might  legally  hold  a  meeting,  out 
of  the  state,  for  the  purpose  of  making  the  appointment  of  secretary  of  the  cor- 
poration, and  the  appointment  would  not  be  rendered  invalid  thereby,  or  by  the 
fad  thai  the  person  appointed  had  his  permanent  residence  without  the  state. 

"  .Miller  v.  Ewer,  27  Me.  509.  The  law  seems  so  entirely  well  settled,  that 
corporations,  created  by  one  sovereignty,  cannot  so  transfer  their  locality  as 
lv  to  exist  and  act  in  their  organic  corporate  capacity  in  another  sover- 
eignty, that  it  appears  very  singular  that  such  multitudes  uf  speculative  joint- 
corporations,  deriving  their  charters  from  the  legislature  of  the  state,  should 
attempt  to  transfer  their  entire  local  action  to  another  sovereignty  and  jurisdic- 
tion. For  there  is  no  principle  better  settled  than  that  the  locality  of  a  business 
corporation  is  determined  by  that  of  its  principal  business  office.  And  there  are, 
unquestionably,  hundreds  of  business  corporations  chartered  by  the  legislature 
of  one  state  h  iving  their  principal  and  only  business  offices  in  other  states.  This 
is  done  doubtless  by  holding  the  stockholders'  meetings  in  the  states  where  the 
charter  was  obtained,  and  appointing  a  board  of  directors  with  full  powers,  and 
then  carrying  forward  the  business  of  the  company  through  the  agency  of  the 
board  ol  directors,  with  a  by-law  for  filling  vacancies  in  the  board  by  the  action 
of  the  directors  themselves.  But  that  seems  scarcely  less  than  an  evasion.  And 
although  it  may  be  held  binding  upon  the  members  of  the  company  so  long  as 
acquiesce  d  in  by  them,  it  might  at  any  time  be  enjoined  by  proper  proceedings  in 
equity. 

12  1  McCarter,  380. 

People  v.  Trustees  of  Geneva  College,  5  Wendell,  211. 
[*58J 


§17  b. 


THE    CONSTITUTION    OF    CORPORATIONS. 


65 


SECTION     III. 


The  Constitution  of  Corporations,  and  mode  of  Proof. 


1.  Definitions  of  the   different  sense  of  the 

term  "constitution,''  us  applied  to  cor- 
porations. 

2.  How   corporations    may   be    composed   or 

constituted. 
n.  1.   The  question  illustrated  more  in  detail. 

3.  Distinction  of  legislative,  electoral,  and  ad- 

ministrative assemblies  not  essential. 

4.  Corporation    can    only    act   by    its    name. 

Subject  discussed. 

5.  Any  deflation  from  the  name  allowed,  if 

the  substance  and  sense  be  preserved. 

6.  Courts  of  equity  will  not  restrain  corpora- 

tions from  applying  for  enlarged  powi  rs. 

7.  Change  of  Constitution.     Effect  of  change 

of  name. 


8.  Courts  r,f  equity  will  ■  njoin  a  ;/'  u 

ration  from  assuming  the  name  of  one 
of  establish/ 1!  credit. 

9.  Promissory  note  payable  to  .  I.  />..  tn  us- 

urer of  a  corporation,  may  h  sued  in 
the  name  of  A.  /<'.  Promissory  note 
for  subscription  waives  condition. 

10.  Corporation   may  hi    estopped  to  duty  its 

existence.     How  described. 

11.  How   the  existence  and  non-existence  of 

corporations  may  be  proved. 

12.  Party  to  writtt  n  contract,  payable  to  cor- 

poration, cannot  deny  corporate  exist- 
ence. 

13.  Proof  of  corporation   in  fact  sufficient 

in  all  cases. 


§  17  b.  1.  The  term  "  constitution,"  as  applied  to  corporations, 
is  susceptible  of  being  used  in  very  different  senses.  It  may  imply 
nothing  more  than  the  charter  or  formal  grant  of  corporate  organi- 
zation and  powers  by  the  sovereignty,  or  it  may  be  applied  to 
certain  fundamental  principles,  declared  by  the  corporators  them- 
selves, as  the  unalterable  basis  of  the  organization  of  the  body; 
or,  if  not  wholly  unalterable,  not  to  be  altered  except  by  the 
*  adoption  and  concurrence  of  certain  formalities,  not  likely  to 
occur,  except  in  regard  to  changes  of  very  obvious  necessity  ;  or 
the  term  may  be  used  to  signify  the  constituent  members,  or  dif- 
ferent bodies  of  which  the  corporation  is  composed. 

2.  A  corporation  may  be  composed  of  natural  persons,  acting  in 
their  separate  and  individual  capacity ;  or  it  may  be  composed  of 
different  bodies  of  natural  persons,  acting  in  separate  assemblies; 
or  it  may  be  composed  of  separate  and  distinct  corporations.1 


1  Joint-stock  business  corporations  arc,  for  tbe  most  part,  composed  of  natural 
persons.  But  as  membership  in  such  corporations  grows  out  of  the  ownership 
of  shares,  it  may  exist  in  other  corporations,  who  subscribe  for  or  purchase 
shares  ;  or  the  shares  may  be  in  part  owned  by  the  sovereignty,  either  state  or 
national.  Bank  of  the  United  States  v.  The  Planters'  Bank  of  Georgia,  9 
Wheaton,  904  ;  Bank  of  South  Carolina  v.  Gibbs,  3  McCord,  377.  But,  as  said 
vol.  i.  5  [*59] 


RAILWAYS    as   CORPORATIONS.  PART  II. 

writers  have  distinguished  the  meetings  or  assemblies 
of  aggregate  corporations  into  three  kinds,  —  legislative,  electoral, 
and  administrative.  But  this  is  a  distinction  with  reference  to 
the  different  offices  or  duties  of  the  same  assembly,  or  meeting, 
and  is  consequently  of  no  practical  importance  to  be  maintained 
or  discussed. 

I.  A  corporation  must  be  constituted  by  some  corporate  name, 
and  ran  only  acl  by  such  name.3  A  corporation  by  prescription 
may  have  several  names,  but  by  charter  it  can  have,  it  is  said, 
bui  one  name  for  the  same'  purpose  and  at  the  same  time.  For, 
•  although  it  may  have  a  new  charter  by  a  new  name,  it  thereby 
loses  the  old  name.4 

I,,  Mi .  (  Ihief  Justice  Marshall,  in  Bank  of  the  United  States  v.  The  Planters1  Bank, 
'.i  \\  heat.  904.  "As  a  member  of  a  corporation,  a  government  never  exercises 
ivereignty.  It  acts  merely  as  a  corporator,  and  exercises  no  other  power 
in  tin-  managemi  nt  of  the  affairs  of  the  corporation  than  are  expressly  given 
by  the  incorporating  act." 

A  familiar  instance  of  corporations,  composed  of  different  associations  of 
natural  persons,  forming  component  parts  of  the  corporation,  will  be  found  in 
the  organization  of  municipalities,  1  Kyd.  36.  So  also  the  corporation  may  be 
composed  of  a  defined  number  of  persons  of  a  particular  class.  As  in  the  case 
of  st.  Mary's  <  Ihurch  in  the  city  of  Philadelphia,  7  S.  &  R.  517. 

And  a  corporation  is  sometimes  constituted  of  several  subordinate  corporations 
combined.  As  in  the  case  of  the  Dean  and  Canons  of  the  English  Cathedrals, 
_'  Burn's  Eccl.  Law,  'lit.  Monasteries,  542.  The  same  is  also  true  of  the  cor- 
porations of  the  English  Universities,  which  are  composed  of  the  subordinate 
corporations  oi"  tin-  different  Colleges  and  Halls.  1  Kyd.  36.  Some  English 
towns  and  cities  are  composed  of  several  subordinate  corporations.  And  a  free- 
man of  the  city  of  London  must  tirst  become  a  freeman  of  some  of  the  Trades' 
incorporations.  Angell  &  Ames,  §  96. 
■-'  1  Kyd.  399;  Angell  &  Ames,  §  98. 

( lollege  of  Physicians  v.  Salmon,  3  Salk.  102. 
*  Anonymous,  3  Salk.  102.  But  some  writers  have  said  that  if  the  charter  of 
a  corporation  allow  them  to  act  by  different  names  for  the.  same  purpose,  there 
i-  no  good  reason  why  they  may  not.  1  Kyd.  230.  And  in  Minot  v.  Curtis,  7 
Mass.  HI,  it  is  said  a  parish  may  be  known  by  several  corporate  names.  The 
poinl  is  not  important,  since  few  corporations  make  any  claim  to  an  alias  dictus, 
ami  where  that  is  claimed  there  will  commonly  be  no  difficulty  in  determining 
how  far  the  claim  <an  be  justified  or  maintained.  There  is  no  pretence  of  the 
icity  of  a  corporation  to  change  its  own  name  at  will.  Serious  inconvenience 
might  be  expected  to  result  from  any  such  facility  of  change  of  name  being  con- 
ceded  to  corporations.  Keg.  v.  Registrar,  10  Q.  B.  839.  But  the  legislature 
may  change  the  name  of  a  corporation,  and  this  will  not  affect  its  rights,  its 
identitv  being  shown.     Rosenthal  v.  Madison,  P.  R.  Co.,  10  Ind.  358. 

[*60] 


§  17  b.  THE   CONSTITUTION   OF   CORPORATIONS.  67 

5.  But  it  sometimes  becomes  an  important  and  difficult  con- 
sideration, how  far  a  departure  from  the  strict  corporate  name 
can  be  allowed  without  the  violation  or  disregard  of  established 
principles.  It  was  early  decided 5  that  in  contracts  by  or  to  cor- 
porations, it  is  sufficient  if  the  name  be  substantially  preserved. 
It  is  not  requisite  ut  idem  nomen  syllabis  be  preserved,  but  only 
in  re  et  sensu.  The  precise  words  of  the  same  are  not  indispensa- 
ble. It  is  sufficient  if  the  substance  and  the  sense  be  preserved. 
And  in  a  case  in  New  Hampshire,  it  was  held  not  essential,  in 
naming  a  corporation,  that  the  same  words  should  be  used  in  the 
same  order,  provided  the  description  was  sufficient  to  identify  the 
body.6  And  this  rule  obtains  generally,  in  all  the  cases  upon  the 
subject,  both  English  and  American.  If  the  name  used  to  de- 
scribe the  corporation  does  not  describe  any  other  person,  natural 
or  corporate,  and  is  sufficient  to  show  that  the  particular  corpora- 
tion was  intended,  it  will  be  sufficient.7 

6.  The  constitutions  and  powers  of  all  corporations  must  neces- 
sarily depend  upon  the  law  of  the  state  where  the  same  was  cre- 
ated. And  in  the  English  courts  of  equity  it  is  not  the  practice 
to  interfere  to  restrain  the  majority  of  the  shareholders  from  ap- 
plying to  parliament  for  enlarged  powers.  And  the  same  rule  is 
there  adopted  as  to  foreign  corporations,  whose  shareholders  prin- 
cipally *  reside  in  England,  and  where  the  principal  business  is 
transacted  in  that  country.8 

7.  The  English  courts  of  equity  hold  a  very  strict  hand  over 
joint-stock  companies  incorporated  by  act  of  parliament,  both  in 
regard  to  the  exercise  of  their  powers  and  the  application  of  their 
funds.9  Where  the  name  of  a  corporation  is  altered  by  act  of  the 
legislature,  with  a  provision  that  it  shall  not  have  the  effect  to 
prejudice  any  right  or  remedy  in  favor  of  the  company  previously 

5  Mayor  and  Burgesses  of  Lynne  Regis,  10  Co.  Rep.  (11  Jac.  I.)  122. 

6  Newport  Mech.  Co.  v.  Starbird,  10  N.  H.  123. 

7  First  Parish  in  Sutton  v.  Cole,  3  Pick.  232 ;  Tucker  v.  Seamen's  Aid  Society, 
7  Met.  188 ;  Attorney-General  v.  Corporation  of  Rye,  7  Taunt.  546  ;  Foster  v. 
Walter,  Cro.  Eliz.  106  ;  Domestic  &  Foreign  Missionary  Society's  Appeal,  30 
Penn.  St.  425 ;  Button  v.  American  Tract  Society,  23  Vt.  336 ;  Redfield  on 
Wills,  Pt.  1,  §  40,  and  cases  cited. 

8  Bill  v.  Sierra  Nevada  L.  W.  Co.,  1  De  G.,  F.  &  J.  177  ;  s.  c.  6  Jur.  (N.  S.) 
184. 

9  Attorney-General  v.  Great  N.  Railw.,  1  Drew.  &  Sm.  154. 

[•81] 


68  RAILWAYS    AS    CORPORATIONS.  PART  II. 

existing,  it  was  held  to  save  the  remedy  against  a  surety  upon  a 
bond  for  faithful  service  of  an  employe.10 

i.  An  application  was  made  in  a  somewhat  recent  case,11  for  an 
injunction  against  the  defendant's  adoption  and  use  of  the  plain- 
tiff's name,  or  one  bo  similar  as  to  lead  the  public  to  suppose  they 
were  the  same  institution,  upon  the  ground  that  this  would  tend 
to  deprive  them  of  the  just  benefits  of  the  long  period  of  conducting 
their  business  upon  terms  and  in  a  mode  most  acceptable  to  the 
public.  The  application  was  based  upon  the  same  grounds  that 
have  induced  courts  of  equity  to  interfere  to  protect  parties  from 
the  fraudulent  use  of  established  trade-marks,  inasmuch  as  it  tends 
to  a  double  fraud,  —  in  depriving  the  parties  first  giving  charac- 
ter to  such  mark  of  the  legitimate  fruits  of  their  industry  ;  and 
also  in  that  it  induces  the  public  to  suppose  they  are  obtaining 
the  original  article  of  the  original  proprietor,  when  in  fact  they 
are  not.1-  The  court,  Vice-Chancellor  Stuart,  intimated  no  doubt 
of  the  propriety  of  granting  the  relief,  upon  the  ground  claimed 
in  the  bill,  but  denied  the  injunction  upon  the  ground  that  no 
such  case  was  made  out  at  the  hearing.  But  a  company  cannot 
by  user  acquire  an  exclusive  right  to  use,  in  its  title  of  incorpora- 
tion, a  term  descriptive  merely  of  the  locality  where  the  business 
is  carried  on  ;  and  the  court  will  not  restrain  the  use  of  such 
general  term  by  a  new  company,  although  it  appear  that  the  former 
company  may  have  been  prejudiced  by  the  similarity  of  name.13 

*  9.  A  promissory  note  payable  to  a  person  byname,  adding 
treasurer,  Arc,  naming  a  railway  corporation,  must  be  regarded 
as  payable  to  the  person  named  and  not  to  the  corporation.14  But 
such  a  note,  given  for  a  conditional  subscription  of  stock,  must 
be  regarded  as  a  waiver  of  the  condition,  ana,  if  executed  some 
time  after  the  date  of  the  subscription,  cannot  be  construed  as  part 
of  the  contract  of  subscription.15 

10.  A  corporation,  after  having  claimed  and  exercised  corporate 
powers  for  a  considerable  time,  will  be  estopped  from  denying  its 

.  &  C.  <  !o.  r.  ( 'ooper,  8  C.  B.  (N.  S.)  800. 
11  The  London  Insurance  v.  The  London  &  Westminster  Insurance  Corpora- 
tion, <J  Jut.  (N.  S.)  843. 

Story  Eq.  Jur.  §  '.)■'>]  et  seq.,  in  the  late  edition  of  1860. 
13  ( 'olonial  Lite  Ass.  Co.  v.  Home  &  Col.  Life  Ass.  Co.,  33  Beav.  548 ;  s.  c. 
10  Jur.  (X.  S.)  967. 

"  Chadsey  v.  McCreery,  27  111.  253. 

18  ODnnald  v.  E.  Ind.  &  CI.  Railw.  Co.,  14  Ind.  259. 

[*62] 


§  17  b.  THE    CONSTITUTION    OF    CORPORATIONS.  69 

corporate  existence.16  It  is  said  in  some  cases,  that  if  the  corpora- 
tion contracts  by  a  style  which  is  usual  in  creating  corporations, 
and  which  discloses  the  names  of  no  natural  persons,  that  the 
corporate  existence  will  be  implied  and  need  not  be  averred.17 
But  in  general  such  a  proposition  would  not  be  regarded  as  main- 
tainable in  suits,  either  in  favor  or  against  a  corporation  ;  it  should 
be  described  as  such  in  the  declaration,  with  its  location  at  its 
central  place  of  doing  business. 

11.  It  has  been  held,  that  where  defendants,  sued  as  a  corpora- 
tion, rely  upon  the  fact  that  the  corporate  -existence  has  ceased 
before  the  institution  of  the  suit,  it  must  be  pleaded  in  abatement 
and  not  in  bar  of  the  action.  But  in  general  the  want  of  corporate 
existence  and  power  may  be  shown  at  any  time  before  judgment, 
upon  proper  notice  and  special  plea.18  A  party  who  has  sued  a 
corporation  and  recovered  judgment  against  them  by  a  particular 
name,  is  afterwards  estopped  from  denying  the  corporate  exist- 
ence.19 But  this  seems  not  altogether  in  accordance  with  the 
requirement  that  estoppels  be  mutual,  unless  the  judgment  were 
between  the  same  parties.  Such  an  estoppel  would  therefore 
only  operate  as  between  the  plaintiff  in  the  former  suit  and  the 
corporation. 

12.  The  cases  are  very  numerous  where  it  has  been  held  that  a 
*  party  who  gives  a  written  contract  to  a  corporation  by  a  particular 
name  is  estopped  to  deny  the  existence  and  name  of  such  corpora- 
tion.20 

13.  And  in  all  cases  of  the  plea  of  nul  tiel  corporation,  proof  of 
a  corporation  in  fact  will  be  sufficient.20 

16  Callender  v.  Painesville  &  H.  R.  R.  Co.,  11  Ohio  (N.  S.),  516  ;  The  Atlantic 
&  Ohio  R.  R.  v.  Sullivant,  5  Ohio  (N.  S.),  276.  See  also  Ashtabula  &  New 
L.  R.  R.  Co.  v.  Smith,  15  Ohio  (N.  S.),  328. 

17  Stein  v.  Ind.  &c.,  Association,  18  Ind.  237. 

18  Meikel  v.  The  German  Savings  Fund  Society,  &c,  16  Ind.  181. 

19  Poehelu  v.  Kemper,  14  La.  Ann.  308. 

20  Hubbard  v.  Chappel,  14  Ind.  601. 

[*63] 


70 


PROCEEDINGS    UNDER   THE   CHARTER. 


PART  II. 


^CHAPTER    IV. 


PROCEEDINGS    UNDER    THE    CHARTER. 


SECTION    I. 


Organization  of  the  Company. 


Conditions  precedent  must  he  performed. 
must  nil  be  subscribed,  ordinarily. 
1        '■  r-location  of  road,  condition  prece- 

i/t  nt. 
Colorahli  subscriptions  binding  at  law. 
Conditions  subsequent,  how  enforced. 
Stock  distributed  according  to  charter. 
Commissioners  must  all  act. 


8.  Defect  of  organization  must  be  pleaded 

specially. 

9.  Question  cannot  be  raised  collaterally. 

10.  Records  of  company,  evidence. 

11.  Membership,  how  maintained. 

12.  By  subscription  and  transfer  of  shares. 

13.  Ojfeis   to  take  shares   not  enforced  in 

equity,  and  may  be  withdrawn. 


§  18.  1.  To  give  the  corporation  organic  life,  the  mode  pointed 
out  in  the  charter  must  ordinarily  be  strictly  pursued.  Conditions 
precedent  must  be  fairly  complied  with.1  Thus,  where  a  given 
amount  of  capital  stock  is  required  to  be  subscribed  or  paid  in  be- 
fore the  corporation  goes  into  operation,  this  is  to  be  regarded  as 
an  indispensable  condition  precedent.2  But  if  the  charter  is  in 
the  alternative,  so  that  the  stock  shall  not  be  less  than  one  sura  or 
greater  than  another,  the  company  may  go  into  operation  with  the 
less  amount  of  stock,  and  subsequently  increase  it  to  the  larger.2 

1  Angell  &  Ames  on  Cor.  ch.  3,  §§  95-112  ;  2  Kent,  Comm.  293  et  seq. 

2  Post,  §  51,  and  cases  cited.  Bend  v.  Susquehanna  Bridge,  6  Har.  &  Johns. 
128 ;  Gray  v.  Portland  Bank,  3  Mass.  364 ;  Minor  v.  The  Mechanics'  Bank  of 
Alexandria,  1  Peters  (U.  S.),  46.  Opinion  of  Story,  J.  And  where  a  corpora- 
tion is  formed,  or  attempted  to  be  formed,  under  general  statutes,  the  inchoate 
proceedings  do  not  ripen  into  a  corporation,  until  all  the  requirements  of  the 
statute,  even  the  filing  of  the  articles  in  the  office  of  the  Secretary  of  State,  are 
complifd  with.  And  until  this  is  done,  the  subscription  of  any  one  to  the  articles 
is  a  mere  proposition  to  take  the  number  of  shares  specified,  of  the  capital  stock 
of  the  company  thereafter  to  be  formed,  and  not  a  binding  promise  to  pay.  The 
obligation  is  merely  inchoate,  and  can  never  become  of  any  force,  unless  the  cor- 
poration goes  into  effect  in  the  mode  pointed  out  in  the  statute.  And  until  that 
time,  the  subscriber  may  revoke  the  oiler,  and  if  the  articles  are  in  his  possession 
or  control,  erase  his  name.     Burt  v.  Farrar,  24  Barb.  518. 

[*64] 


§18.  ORGANIZATION    OF    THE    COMPANY.  71 

*  2.  And  where  business  corporations  are  created  with  a  definite 
capital,  it  is  regarded  as  equivalent  to  an  express  condition  that 
the  whole  stock  shall  be  subscribed  before  the  company  can  go  into 
full  operation  ;  and  in  the  case  of  banks,  it  must  be  paid  in  specie 
in  the  absence  of  all  provision  to  the  contrary,  before  they  can 
properly  go  into  operation.3 

3.  In  some  cases  it  is  a  condition  of  the  charter,  or  of  the  sub- 
scriptions to  the  stock,  that  the  track  of  a  railway  shall  touch 
certain  points,  or  that  it  shall  not  approach  within  certain  distances 
of  other  lines  of  travel.  This  class  of  conditions,  so  far  as  they 
can  practically  be  denominated  conditions  precedent,  must  be 
strictly  complied  with,  before  the  company  can  properly  go  into 
operation  so  as  to  make  calls. 

4.  But  it  has  been  held,  that  colorable  subscriptions  to  stock,  in 
order  to  comply  with  the  requisites  of  the  charter,  are  not  to  be  re- 
garded as  absolutely  void.  They  are  binding  upon  the  subscribers 
themselves.  And  they  are  binding  upon  the  other  subscribers, 
unless  upon  their  first  discovery,  they  take  steps  to  stay  the  further 
proceedings  of  the  corporation,  which  may  be  done  in  a  court  of 
equity.  If  there  has  been  unreasonable  delay  in  opposing  the 
action  of  the  corporators,  upon  the  faith  of  such  subscriptions,  or  if 
matters  have  progressed  so  far  before  the  discovery  of  the  true 
character  of  the  subscriptions,  by  the  parties  liable  to  be  injuriously 
*  affected  by  them,  as  to  render  it  difficult  to  restore  the  parties 

8  King  v.  Elliott,  5  Sin.  &  Mar.  428  ;  post,  §  51.  But  a  requirement  in  the 
charter  of  a  railway  company,  that  $1,000  per  mile  shall  be  subscribed,  ami  ten 
per  cent  paid  thereon  in  good  faith,  does  not  require  ten  per  cent  to  be  paid  by 
each  subscriber,  in  order  to  the  performance  of  the  condition.  It  is  a  sufficient 
compliance  with  such  requirement,  if  that  proportion  on  the  whole  subscription 
be  paid.  Ogdensb.,  Rome,  &  Clay.  R.  v.  Frost,  21  Barb.  541.  But  under  the 
late  English  Statutes  corporations  are  allowed  to  organize,  and  make  calls  to 
some  extent,  before  all  the  capital  is  subscribed.  Or.  P.  W.  Co.  v.  Brown,  9 
Jur.  (N.  S.)  578  ;  s.  c.  2  H.  &  C.  63.  But  in  America  the  rule  that  all  the  stock 
must  be  subscribed  before  the  company  can  go  into  operation  is  strenuously 
adhered  to.  Shurtz  v.  The  S.  &  T.  Railw.  Co.,  9  Mich.  269.  And  upon  gen- 
eral principles  it  seems  not  to  be  held  indispensable  in  England  that  all  the  stock 
be  subscribed,  either  to  enable  the  corporation  to  go  into  operation,  or  even  to 
borrow  money  on  mortgage.  McDougall  v.  The  Jersey  Imperial  Hotel  Co.,  2 
H.  &  M.  528;  8.  c.  10  Jur.  (N.  S.)  1043.  But  in  America,  the  entire  capital 
stock  must  be  subscribed  and  paid  in  money,  and  it  will  not  be  sufficient  to  pay 
it  in  the  equivalent  for  money,  to  the  acceptance  of  the  shareholders  or  directors, 
unless  the  charter  or  general  laws  of  the  State  so  provide.  The  People  v.  The 
Troy  House  Co.,  44  Barb.  625. 

3  [*65,66] 


72  PROCEEDINGS    UNDER    THE   CHARTER.  PART  II. 

to  their  former  rights,  the  corporation  will  still  be  allowed  to  pro- 
ceed, notwithstanding  the  fraud  upon  the  charter.4 

5.  Conditions  subsequent  in  railway  charters,  by  which  is  to  be 
understood  such  acts  as  they  arc  required  to  perform  after  their 

mization,  will  ordinarily  form  the  foundation  of  an  action  at 
law,  in  favor  of  the  party  injured  ;  or  they  may  be  specifically  en- 
forced in  courts  of  equity,  in  cases  proper  for  their  interference  in 
that  mode;  or,  if  the  charter  expressly  so  provide,  proceeding's  by 
way  of  8  8,  to  avoid  the  charter  may  be  taken.5 

6.  Where  a  statute  declares  certain  persons  by  name,  and  such 
other  persons  as  shall  hereafter  become  stockholders,  a  corpora- 
tion, the  distribution  of  the  stock,  in  the  mode  pointed  out  in  the 
statute,  is  a  condition  precedent  to  the  existence  of  the  corpora - 
tion.6 

7.  Where  the  charter  of  a  railway  company  appoints  a  certain 
number  of  commissioners,  to  receive  subscriptions  and  distribute 
the  stock,  in  such  manner  as  they  shall  deem  most  conducive  to 
the  interests  of  the  company,  making  no  provision  in  regard  to  a 
quorum,  all  must  be  present  to  consult  when  they  distribute  the 
siock,  although  a  majority  may  decide,  this  being  a  judicial  act. 

Receiving  subscriptions  is  a  merely  ministerial  act  and  may  be 
performed  by  a  number  less  than  a  majority.6 

4  Walker r.Devereaux,  1  Paige,  229 ;  s.  c.  1  Redf.  Am.  Railw.  Cases,  29.  The 
entire  -round  of  chancery  jurisdiction  in  regard  to  the  conduct  of  commissioners 
or  corporations  in  making  colorable  subscriptions  of  stock  is  lure,  very  fully  dis- 
d  by  the  learned  Chancellor.  And  the  conclusion  arrived  at  seems  the  only 
practicable  one,  that  colorable  subscriptions  or  fraudulent  distribution  of  stock 
will  not  defeat  the  legality  of  the  organization  of  the  corporation,  unless  the 
thing  i  arrested  in  limine.  Johnston  v.  S.  W.  R.  R.  Bank,  3  Strob.  Eq.  263; 
la  &  Tenn.  U.  v.  Tipton.  5  Alabama,  787  ;  Ilayne  v.  Beauchamp,  5  Sm.  &  M. 

515.     The  decision  of  the  commissioners  is  conclusive  upon  the  c pany  and 

shan  at  law  certainly.     Crocker  v.  Crane,  21  Wendell,  211 ;  s.c.  lRedf. 

Am.  Railw.  Cases,  42.     And  where  the  charter,  or  act  of  association,  names  com- 

ike  up  subscriptions,  they  alone  have  jurisdiction  of  the  matter,  and 

Bubt  iken  up  by  volunteers  are  not  binding  upon  the  subscribers  unless 

led  h)  the  commissioners.     Shurtz  v.  The  S.  &  T.  R.  R.  Co.,  9  .Mich.  269. 

imm.  305,  and  notes. 

:ker  v.  Crane,  21  Wendell,  211;  s.  c.  2  Am.  Railw.  C.  484 ;  s.c.  1  Redf. 

Am.  Raih  12.    Where  the  statute-  nanus  a  large  number  of  persons,  and 

•  '"'  anj  three  of  them,  may  act  as  commissioners,  either  the  whole 

number  or  any  three  may  acl  at  the  election  of  the  individuals.     No  particular 

form  of  words  i    required  to  create  the  grant  of  a  corporation.     The  grant  of 

[*67] 


§  18.  ORGANIZATION   OF  THE    COMPANY.  73 

If  the  organization  of  a  corporation  is  regular  upon  its  face,  and 
the  legislature  have  recognized  it  as  such  subsequently  to  its  having 
gone  into  operation,  it  becomes  ipso  facto  a  legal  corporation.7 

8.  Questions  in  regard  to  the  organization,  or  existence  of  the 
corporation,  can  only  be  raised  ordinarily  upon  an  express  plea, 
either  in  abatement  or  in  bar,  denying  its  existence.8 

9.  But  all  the  cases  concur  in  the  proposition,  that  the  existence 
of  the  corporation,  the  legality  of  its  charter,  and  the  question  of 
its  forfeiture,  cannot  be  inquired  into,  in  any  collateral  proceeding, 
as  in  a  suit  between  the  compan}^  and  its  debtors,  or  others,  against 
whom  it  has  legal  claims.9 

10.  The  records  of  the  corporation  are  prima  facie,  but  not  in- 
dispensable evidence,  of  its  organization  and  subsequent  proceed- 
ings.10    But  the  authenticity  of  the  books,  as  the  records  of  the 

power  to  perform  corporate  acts  implies  the  grant  of  corporate  powers.     Comm. 
v.  West  Chester  Railw.  Co.,  3  Grant  Cas.  200. 

7  Black  River  &  Utiea  Railw.  v.  Barnard,  31  Barb.  258. 

8  Boston  Type  and  Stereotype  Foundry  v.  Spooner,  5  Vt.  93,  and  cases 
cited;  Railsback  v.  Liberty  &  Abington  Tump.  Co.,  2  Carter.  656.  But  some 
cases  seem  to  require  such  proof  to  establish  the  contract.  Stoddard  v.  The 
Onondaga  Annual  Conference,  12  Barb.  573  ;  Heaston  v.  Cincinnati  &  F.  W.  R., 
16  Ind.  275.  A  party  who  executes  his  promissory  note  to  a  company  by  its 
corporate  name  is  estopped  to  deny  its  corporate  existence.  Fast  l'aseagoula 
Hotel  Co.  r.  West,  13  La.  Ann.  ,341.  s.  p.  Black  River  Railw.  v.  Clarke,  25 
N.  Y.  280.  But  in  an  action  by  a  corporation  upon  a  judgment,  the  defendant 
is  estopped  to  plead  that  no  such  corporation  exists,  even  if  he  propose  to  prove 
its  dissolution  after  the  date  of  the  judgment.  He  should  plead  such  matter 
specially.  Perth  Amboy  Steamboat  Co.  v.  Barker,  2  Phila.  67.  But  see  Ander- 
son v.  Kerns  Draining  Co.,  14  Ind.  199. 

9  Duke  v.  Cahawba  Nav.  Co.,  16  Alabama,  372;  post,  §  212,  note  6.  But 
in  an  action  against  a  stockholder  lor  the  debt  of  the  company  under  the  statute, 

-the  existence  and  organization  of  the.  company  must  be  proved;  and  judg- 
ment against  the  company  is  not  evidence  against  the  stockholder.  Hudson  v. 
Carman,  20  Law  Rep!  216;  s.  c.  41  Me.  84;  C.  P.  &  A.  Railw.  v.  City  of 
Erie,  27  Penn.  St.  380.  See  also  Eakright  v.  L.  &  N.  I.  Railw.,  13  Ind.  404. 
The  subscription  to  the  stock  of  a  corporation  estops  the  subscriber  to  deny 
the  corporate  existence,  nor  can  the  subscriber  plead  in  defence  of  such  sub- 
scription that  other  subscribers,  by  means  of  secret  fraudulent  agreements, 
were  promised  shares  upon  terms  different  from  those  specified  in  the  agreement, 
since  such  fraudulent  arrangements  are  of  no  validity,  and  cannot  avail  the  par- 
ties on  whose  behalf  they  are  made.     Anderson  v.  N.  &  R.  Railw.,  12  Ind.  876. 

10  Aug.  &  Am.  §513;  Grays  v.  Lynchb.  &  Salem  T.  Co.,  1  Rand.  578;  Bun- 
combe T.  Co.  v.  McCarson,  1  Dev.  &  Bat.  306;  1  Greenl.  Ev.  §  493;  Rex  r. 
Martin,  2  Camp.  100;  Hudson  v.  Carman,  20  Law  Rep.  216;  s.  C.  II  Me.  84. 

1*01] 


74  PROCEEDINGS    UNDER    THE    CHARTER.  PART  IT. 

'corporation,  must  be  shown  by  the  testimony  of  the  proper 
officer  entitled  to  their  custody,  or  that  of  some  other  person  cog- 
nizant of  the  fact.11 

11.  Questions  sometimes  arise  as  to  what  constitutes  member- 
ship in  a  corporation.  This  has  to  be  determined,  in  most  aggre- 
gate corporations,  by  the  just  construction  and  fair  import  of  the 
charter  and  by-laws  of  the  body.  The  usage  of  the  corporation 
and  of  other  similar  bodies  will  be  of  controlling  force  in  deter- 
mining such  questions.  But  the  power  of  maintaining,  in  some 
mode,  a  supply  of  members  of  the  body,  is  incident  to  all  corpora- 
tions, as  indispensable  to  its  continued  existence.12 

All  that  a  corporation  is  called  upon  to  prove,  to  establish  its  existence  in  a 
litigation  with  individuals  dealing  with  it,  is  its  charter  and  user  under  it.  This 
constitutes  it  a  corporation  de  facto,  and  this  is  sufficient,  in  ordinary  suits, 
between  the  corporation  and  its  debtors.  The  validity  of  its  corporate  exist- 
ence can  only  be  tested  by  proceedings  in  behalf  of  the  people.  Mead  v. 
Heeler,  24  Barb.  20.  Between  the  company  and  strangers,  the  records  of 
the  company  will  ordinarily  be  held  conclusive  against  them  in  regard  to  such 
matters  as  it  is  their  duty  to  perform,  in  the  manner  detailed  in  the  records. 
Zabriskie  ».  C.  C.  &  C.  Railw.,  10  Am.  Railw.  Times,  No.  15 ;  s.  c.  affirmed,  23 
How.  381;  Ileaston  v.  Cincinnati,  &c.  Co.,  16  Ind.  275.  See  upon  the  gen- 
eral question  of  proof  and  presumption  of  the  organization  of  corporations, 
Leonaidsville  Bank  v.  Willard,  25  X.  Y.  574 ;  Belfast  and  Angelica  Plank 
Road  Co.  v.  Chamberlain,  32  N".  Y.  651 ;  Buffalo  &  Allegany  Railw.  v.  Cary, 
26  N.  Y.  75.  Where  the  statute  under  which  an  incorporation  is  formed  in 
another  state,  required,  that  before  the  corporation  should  commence  business 
it  should  cause  its  articles  of  association  to  be  published  in  a  prescribed  form,  it 
was  held  that  it  might  be  regarded  as  sufficiently  incorporated  for  the  bringing 
of  an  action  without  the  publication ;  and  that  the  general  reputation  and 
notoriety  of  the  fact  that  such  corporation  was  doing  business  in  that  capacity, 
coupled  with  the  fact  that  the  contract  sued  upon  was  made  payable  to  them, 
was  sufficient  evidence  of  the  corporate  existence.  Holmes  v.  Gilliland,  41 
Barb.  568.  See  Unity  Ins.  Co.  v.  Cram,  43  N.  H.  636,  where  the  rule  of  con- 
struction is  somewhat  more  strict. 

There  seems  to  be  no  rule  of  practice  better  settled  than  that  where  the  de- 
fendant, in  a  suit  brought  by  a  corporation,  pleads  the  general  issue,  he  thereby 
concedes  the  right  of  the  plaintiff  to  sue  in  his  corporate  capacity.  Orono  v. 
Wedgeworth,  44  Me.  49.  The  members  of  a  mutual  insurance  company  can- 
not.dispute  the  corporate  existence  in  a  suit  upon  the  premium  notes  in  favor  of 
a  receiver  appointed  to  wind  up  the  concerns  of  the  company.  Hyatt  v.  Whip- 
ple, 37  Barb.  595.  Misnomer  of  corporations  must  be  plead  in  abatement,  or  it 
will  be  regarded  as  waived.     Keech  v.  Bait.  &  Wash.  Railw.,  17  Md.  32. 

11  Highland  Tump.  Co.  v.  McKean,  10  Johns.  154.  See  Breedlove  v.  M., 
&c.  Railw.  Co.,  12  Ind.  114. 

12  Hicks  v.  Launceston,  1  Roll.  Ab.  513,  514 ;  s.  c.  8  East,  272,  in  n.    See  also 

[*68] 


§  19.  MODIFICATION   AND   ACCEPTANCE   OF   THE   CHARTER.  75 

*12.  But  in  joint-stock  business  corporations,  like  banks  and 
railways,  and  other  similar  companies,  membership  is  originally 
constituted  by  subscription  to  the  shares  in  the  capital  stock  ;  and 
it  is  subsequently  continued  by  the  transfer  of  such  shares,  in  con- 
formity with  the  charter  and  by-laws  of  the  company,  and  no 
election  by  or  assent  on  the  part  of  the  corporation  is  requisite, 
unless  made  so  by  the  charter  or  by-laws. 

13.  Serious  questions  often  arise  in  regard  to  the  allotment  and 
acceptance  of  shares.  Courts  of  equity  have  sometimes  declined 
to  interfere  to  carry  into  effect,  specifically,  contracts  with  the  pro- 
moters to  accept  shares  in  the  company  when  it  should  be  fully 
organized.13  But  we  apprehend  the  rule  is  generally  otherwise,  as 
we  have  stated  elsewhere.14  And  one  who  has  made  the  requisite 
deposit  and  also  the  formal  application  to  the  company  for  an 
allotment  of  shares,  is  still  at  liberty  to  withdraw  the  application 
at  any  time  before  it  is  accepted  or  any  allotment  made.15 


SECTION    II. 
Acceptance  of  Charter,  or  of  Modification  of  it. 


1.  New  or  altered  charter  must  be  formally 

accepted. 

2.  Subscription  for  stock  sometimes  sufficient. 

3.  Inoperative  unless  done  as  required. 


[>.  }[ittter  of  presumption  and  inference. 

6.  Organization  or  acceptance  of  charter  may 

be  shown  by  parol. 

7.  Corporators  assenting  are  bound. 


4.  Assent  to  beneficial  grant,  presumed.  \  8.   Charter  subject  to  recall  until  accepted. 

§  19.  1.  It  is  requisite  to  the  binding  effect  of  every  legislative 
charter  (or  modification  of  such  charter)  of  a  joint-stock  company, 

2  Kent,  Comm.  294.  It  is  not  competent  for  the  defendant,  in  an  action  in  favor 
of  a  corporation,  to  plead  that  the  company  lias  committed  acts  working  a  for- 
feiture of  its  corporate  franchises.  That  can  only  be  determined  by  a  suit  on 
behalf  of  the  public,  brought  expressly  to  try  that  question.  Comm.  v.  Morris, 
1  Phil.  411;  Coil  v.  Pittsburgh  Female  College,  40  Penn.  St.  430;  Dyer  v. 
Walker  &  Howard,  id.  157.  Membership  in  the  corporation  is  not  affected  by 
the  certificate  of  shares  containing  a  promise  to  pay  interest  till  a  certain  time. 
McLaughlan  v.  D.  &  M.  R.  Co.,  8  Mich.  100. 

13  Oriental  I.  St.  Co.  v.  Briggs,  2  Johns.  &  II.  025  ;  s.  c.  4  L.  Times  (N.  S.), 
578.  But  this  case  was  affirmed  by  the  Lord  Chancellor,  on  the  ground  that 
there  was  no  valid  or  complete  contract.     5  L.  Times  (N.  S.),  477. 

14  Post,  §  34,  pi.  0. 

15  Graham  ex  parte.  7  Jur.  (N.  S.)  981. 

[*69] 


76  PROCEEDINGS    UNDER    THE    CHARTER.  PART  II. 

*  tliat  it  should  be  accepted  by  the  corporators.1  This  question 
more  commonly  arises,  in  regard  to  the  modification  of  a  charter, 
or  the  granting  of  a  new  charter,  the  company  in  either  case, 
whether  under  the  old  or  the  new  charter,  going  forward  to  all 
appearance  much  the  same  as  before.  In  such  case,  it  has  usually 
been  regarded  as  important  to  show  some  definite  act  of  at  least  a 
majority  of  the  corporation.2 

2.  The  question  of  acceptance  becomes  of  importance  often, 
where  a  partnership,  or  some  of  its  members,  obtain  an  act  of  in- 
corporation. But  ordinarily,  in  the  first  instance,  the  assent  of 
the  stockholders,  or  corporators,  is  sufficiently  indicated  by  the 
mere  subscription  to  the  stock. 

3.  Where  a  statute  in  relation  to  a  corporation  requires  accept- 
ance, in  a  prescribed  form,  and  that  is  not  complied  with,  the  cor- 
poration can  derive  no  advantage  from  the  act.3 

4.  It  has  been  held,  that  grants  beneficial  to  corporations  may 
be  presumed  to  have  been  accepted  by  them,  the  same  as  in  the 
case  of  natural  persons.4  ■ 

5.  And  in  the  majority  of  instances,  perhaps,  the  acceptance  is 
rather  to  be  inferred  from  the  course  of  conduct  of  the  company 
than  from  any  express  act.5 

6.  It  may  always  be  proved  by  oral  testimony,  as  may  also  the 
organization  of  the  company,  ordinarily.6 

7.  In  a  case  in  Ohio,  where  an  amendment  of  the  charter 
of  a  bank  was  passed  by  the  legislature  giving  the  bank  certain 
immunities  and  privileges,  upon  the  assent  of  all  the  stockholders 
in  writing,  filed  with  the  auditor  of  the  state,  to  become  personally 
responsible  for  the  liabilities  of  the  company  in  the  manner  pre- 

1  The  King  v.  Pasmore,  3  T.  R.  200,  240 ;  Ellis  v.  Marshall,  2  Mass.  269. 
This  was  a  charter  to  certain  persons  by  name,  for  the  purpose  of  making  a  street, 
and  subjecting  them  to  assessment  for  the  expense,  and  it  was  held  not  to  bind 
a  person  named  in  the  act,  unless  he  assented  to  it. 

2  Wilmot,  J.,  in  Rex  v.  Vice-Ch.  of  Cambridge,  3  Bur.  1647  ;  Rex  v.  Amery, 
1  T.  R.  57."; ;  Falconer  v.  Campbell,  2  McLean  (C.  C),  195. 

3  (ire  n  r.  Seymour,  :i  Sandf.  Ch.  285. 

*  Charles  River  Bridge  v.  Warren  Bridge,  7  Pick.  344;  by  Parker,  C.  J., 
and  Wilde,  J. 

3  Hank  of  U.  S.  v.  Dandridge,  12  Wheat.  64,  opinion  of  Story,  J.,  and  cases 
f-itcd. 

lin  v.  Collins,  17  Maine,  440;  Bank  of  Manchester  v.  Allen,  11  Vt.  302; 
Angcll  &  Ames.  Corp.  ^  81-87  ;    Dartmouth  College  v.  Woodward,  4  Wheat. 
688 ;  Wilmington  &  Manchester  R.  v.  Saunders,  3  Jones,  126. 
[*70] 


§  20.  ORDINARY  CORPORATE  POWERS.  77 

scribed  *  in  the  act,  it  was  held,  that  although  all  the  stockholders 
did  not  subscribe  the  required  written  declaration,  yet  if  the  bank 
had  enjoyed  the  benefits  secured  by  the  amendment,  neither  those 
stockholders  who  did  subscribe  it,  or  the  bank  itself,  can  deny 
the  acceptance  of  the  amendment,  as  against  the  claims  of  third 
persons.7 

8.  And  where  the  constitution  of  the  state  is  so  altered  as  to 
prohibit  the  grant  of  special  acts  of  incorporation,  it  was  held,  that 
such  an  act  granted  before  the  new  constitution  took  effect,  and 
which  had  not  been  accepted  by  the  corporators,  could  not  be 
accepted,  thereafter ;  as  the  grant  of  a  charter  to  those  who  had 
not  applied  for  it,  until  it  was  accepted,  remained  a  mere  offer,  and 
might  be  withdrawn  at  the  pleasure  of  the  grantors.8  But  where 
any  amendment  of  the  charter  of  a  corporation  was  fully  accepted 
by  the  shareholders  before  the  new  constitution  took  effect,  it  can- 
not be  affected  by  any  of  the  provisions  thereof ;  and  what  shall 
amount  to  such  acceptance  is  matter  of  fact,  depending  upon  the 
construction  of  the  facts  proved.9 


SECTION    III. 

Ordinary  powers —  Control  of  majority. 


10.  But  will,  if  to  convert  canal  into  railway. 

11.  Right  to  interfere  lost  by  acquiescence. 

12.  Acquiescence  of  one  plaintiff,  fatal. 

13.  Railway  a  public  trust. 

14.  Suit  maintained  by  rival  interest. 

15.  Courts    of  equity   will   not  restrain    the 

majority  from  winding  up  unless  for 
fraud,  ;\-r. 


1.  Ordinary  franchises  of  railways. 

2,  3.  Majority  control,  unless  restrained. 

4.  Cannot  change  organic  law. 

5.  Except  in  the  prescribed  mode. 

6.  Cannot  accept  amended  charter. 

7.  Or  dissolve  corporation. 

8.  May  obtain  enlarged  powers. 

9.  Courts  of  equity  will  not  restrain  the  use 

of  their  funds  for  that  purpose. 

§  20.  1.  The  ordinary  powers  of  a  railway  company  are  the 
same  as  those  pertaining  to  other  joint-stock  aggregate  corpora- 

7  Owen  v.  Purdy,  12  Ohio  (N.  S.),  73.  And  a  legislative  permission  to  a 
plank  road  company  to  mortgage  its  corporate  property  is  an  amendment  which 
may  be  accepted  by  the  vote  of  the  majority.  And  the  same  is  true  of  all  amend- 
ments calculated  merely  to  facilitate  the  attainment  of  the  existing  objects  and 
purposes  of  the  corporation.  Joy  v.  Jackson  &  Michigan  Plank  Road  Co.,  11 
Mich.  155. 

8  State  v.  Dawson,  16  Ind.  40. 

9  State  v.  Dawson  22  Ind.  Rep.  272. 

[*71] 


78  PROCEEDINGS    UNDER   THE    CHARTER.  PART  II. 

tions,  unless  restricted  by  the  express  provisions  of  their  charter, 
*  or  by  the  general  laws  of  the  state.  These  are  perpetual  succes- 
sion, the  power  to  contract,  to  sue  and  be  sued  by  the  corporate 
name,  to  hold  land  for  the  purposes  of  the  incorporation,  to  have  a 
common  seal,  and  to  make  its  own  by-laws  or  statutes,  not  incon- 
sistent with  the  charter,  or  the  laws  of  the  state.1  And  it  may  be 
proper  to  say,  that  it  is  implied  in  the  grant  of  all  business  cor- 
porations, that  they  possess  the  power  to  acquire  and  convey  such 
property,  both  real  and  personal,  as  shall  be  found  reasonably 
necessary  and  convenient,  for  carrying  into  successful  operation 
the  purposes  of  their  incorporation.  And  when  there  is  no  limita- 
tion upon  this  power,  in  the  act  of  incorporation,  it  can  only  be 
limited  by  writ  of  mandamus  or  injunction,  out  of  chancery,  at  the 
suit  of  the  attorney-general,  or  by  some  other  proceeding  on  the 
part  of  the  people.  Until  some  such  public  interference,  the  title 
of  the  corporation  will  be  good. 

2.  The  right  of  the  ma  ority  of  a  joint-stock  company,  whether 
a  copartnership  or  a  corporation,  to  control  the  minority,  is  a  con- 
sideration of  vital  importance,  and  will  be  more  extensively  dis- 
cussed hereafter.2 

3.  There  can  be  no  doubt  the  general  principle  of  the  right  of 
the  majority  to  control  the  minority,  in  all  the  operations  of  the 
company,  within  the  legitimate  range  of  its  organic  law,  is 
implied,  in  the  very  fact  of  its  creation,  whether  expressly  con- 
ferred or  not.3 

4.  And  perhaps  it  is  equally  implied  in  the  fundamental  com- 

1  Walford,  69  ;  1  Black.  Comra.  475,  476 ;  2  Kent,  Coram.  277 ;  where  the 
power  of  amotion  of  members  for  just  cause  is  added. 

!  Post,  §§  56,  212. 

3  Louisville,  Cincinnati,  &  Charleston  Railw.  v.  Letson,  2  Howard  (U.  S.), 
497  ;  s.  c.  15  Curtis,  Cond.  193.  The  very  definition  of  a  corporation,  that  it  is 
an  artificial  being  composed  of  different  members,  and  existing  and  acting  as  an 
abstraction,  and  having  its  habitation  where  its  functions  are  performed,  presup- 
poses that  it  must  act  in  conformity  with  its  fundamental  law,  which  is  according 
to  tin-  combined  results  of  its  members,  or  the  will  of  the  majority.  But  this 
will  cannot  change  its  fundamental  law  without  changing  the  identity  of  the  arti- 
ficial being  to  which  we  apply  the  name  of  the  corporation.  See  also  St.  Mary's 
Church,  7  S.  &  R.  517  ;  New  Orleans,  Jackson,  &c.  Railway  v.  Harris,  27  Miss. 
517  :  Ex  parte  Rogers,  7  Cowen,  526,  which  holds,  that  if  the  charter  requires  a 
certain  number  to  be  present,  in  order  to  the  performance  of  a  particular  act,  it 
is  requisite  that  the  number  remain  till  the  act  is  complete,  and  if  one  depart 
before,  although  wrongfully,  it  will  defeat  the  proceedings. 
[*72] 


§  20.  ORDINARY   CORPORATE   POWERS.  79 

pact,  that  the  majority  have  no  power  to  change  the  organic  law  of 
*  the  association,  except  in  conformity  to  some  express  provision 
therein  contained. 

5.  This  principle  lies  at  the  foundation  of  all  the  political  or- 
ganizations in  this  country,  which,  in  theory  certainly,  are  not 
liable  to  be  changed  by  the  will  of  the  majority,  except  in  the  mode 
pointed  out  in  the  constitution  of  the  state  or  sovereignty.  And 
corporations  are  not  subject  to  the  ultimate  right  of  revolution, 
which  is  claimed  to  exist  in  the  state,  and  which  may  be  exercised 
by  the  lav/  of  force,  which  is  a  kind  of  necessity,  to  which  all  sub- 
mit, when  there  is  no  open  way  of  escape.  This  could  have  no 
application  to  a  commercial  company,  whose  movements  are  as 
much  under  the  control  of  the  courts  of  justice  as  those  of  a 
natural  person. 

6.  And  in  this  country  it  has  been  held,  that  the  acceptance  by 
the  majority  of  a  corporation  of  an  amendatory  act,  does  not  bind 
the  minority.4  An  amendment  to  the  charter  of  a  corporation  to 
become  binding,  must  either  have  been  applied  for  in  pursuance  of 
a  vote  of  the  stockholders,  or  else  have  been  accepted  by  such  vote  ; 
or  it  must  have  been  acted  under  for  such  a  length  of  time  as  to 
raise  a  reasonable  presumption  of  knowledge  in  the  shareholders 
and  subsequent  acquiescence.5 

7.  And  a  contract  of  a  manufacturing  corporation  to  employ  the 
plaintiff,  a  stockholder,  during  the  time  for  which  the  corporation 
is  established,  that  being  indefinite,  is  not  released  by  a  majority 
of  the  company  voting  to  dissolve  the  corporation  and  wind  up  its 
concerns,  discharging  the  plaintiff  from  his  employment,  and  trans- 
ferring the  property  to  trustees,  to  pay  the  debts  and  distribute  the 
surplus  among  the  stockholders,  and  giving  notice  to  the  executive 
department  of  the  state,  that  they  claimed  no  further  interest  in 
their  act  of  incorporation.6 

4  New  Orleans,  &c.  Railroad  v.  Harris,  27  Miss.  517.  But  this  rule  will  be 
understood  with  some  limitations.  If  it  be  an  amendment  within  the  ordinary 
range  of  the  original  charter,  giving  increased  facilities  for  the  accomplishment 
of  the  same  objects,  it  may  be  accepted  by  the  majority,  so  as  to  bind  the  whole 
company.  But  if  it  be  a  fundamental  alteration  of  the  constitution  of  the  com- 
pany, it  must  have  either  the  express  or  implied  assent  of  all  the  corporators,  to 
make  it  binding.     Post,  pi.  8;  §  56,  pi.  3,  7. 

5  Illinois  River  Railw  v.  Zimmer,  20  111.  654 ;  Same  v.  Casey,  ib. 

6  Revere  v.  Boston  Copper  Co.,  15  Pick.  351.  This  case,  although  put  mainly 
upon  the  ground  of  plaintiff's  rights  being  independent   of  the  law  of  the  asso- 

[*78] 


80  PROCEEDINGS    UNDER   THE    CHARTER.  PART  II. 

*  8.  But  the  English  cases  seem  to  suppose,  that  it  is  incident 
to  every  business  corporation  to  obtain  such  extension  and  enlarge- 
ment of  its  corporate  powers  as  the  course  of  trade,  and  enterprise, 
and  altered  circumstances,  shall  render  necessary  or  desirable,  not 
altogether  inconsistent  with  its  original  creation.7 

9.  Bence  it  was  held  that  a  court  of  equity  will  not,  at  the  in- 
stance of  a  shareholder,  restrain  a  joint-stock  incorporated  com- 
pany, whose  acts  of  incorporation  prescribe  its  constitution  and 
objects,  from  applying,  in  its  corporate  capacity,  to  parliament,  and 
from  using  its  corporate  seal  and  resources,  to  obtain  the  sanction 
of  the  legislature,  to  the  remodelling  of  its  constitution,  or  to  a 
material  extension  and  alteration  of  its  objects  and  powers.7 

10.  Jn  one  case  where  the  purpose  of  the  company  was  to  apply 
to  parliament  for  leave  to  convert  part  of  its  canal  into  a  railway, 
the  Vice-Chancellor  granted  the  injunction  against  applying  any 
of  its  existing  funds  to  the  proposed  object.8  This  is  the  more 
common  view  of  the  subject  in  this  country,  and  to  a  great  extent 
in  England.9 

ciation,  yet  incidentally  involves  the  right  of  the  majority  of  the  corporators  to 
change  its  constitutional  law.  See  also  Von  Schmidt  v.  Huntington,  1  Cal.  55, 
and  Kean  v.  Johnson,  1  Stockton,  Ch.  401,  where  it  is  held,  that  where  the 
charter  is  granted  for  a  limited  time,  it  must  continue  in  operation  till  the  term 
expires,  unless,  perhaps,  in  case  of  serious  loss,  or  with  the  consent  of  all  the  cor- 
porators, and  others  having  any  legal  interest  in  the  question.  The  same  rule 
was  declared  in  Louisiana.  Lodge  No.  I.  v.  Lodge  No.  I.,  16  La.  Ann.  53. 
And  it  was  here  considered,  that  a  resolution  passed  by  the  majority  of  the 
members  of  a  corporation  donating  all  the  property  of  the  company  to  a  new 
corporation  of  which  the  members  voting  are  also  members,  and  the  delivery  of 
the  same  to  such  corporation  in  pursuance  of  such  resolution,  is  void. 

7  Ware  v.  Grand  Junction  Waterworks,  2  Russ.  &  My.  470;  (13  Eng.  Ch. 
Rep.  12*'.).  Lord  Brougham  seems  here  to  suppose,  that  the  right  of  petition  to 
parliament,  for  enlargement  of  powers,  is  an  implied  incident  of  all  business  cor- 
porations, by  which  the  subscribers  are  bound,  unless  some  express  prohibition 
is  inserted  in  their  charter.  But  the  more  common  implication  in  this  country 
certainly  is,  that  the  original  shareholders  are  not  bound  by  any  such  alteration, 
unless  such  power  exists,  in  terms,  in  the  original  charter,  or  it  is  merely  auxili- 
ary to  its  existing  powers. 

H  (unliil  ,.  Manchester  &  Bolton  Canal  Co.,  2  Russ.  &  My.  480,  in  note. 
But  it  is  here  stated,  that  a  few  days  afterwards,  one  Maudsley  filed  a  bill  against 
the  same  company  and  for  a  similar  object.  The  cause  was  heard  on  its  merits, 
and  the  suit  dismissed  with  costs.  Any  act  beyond  the  scope  of  the  constitution 
of  the  company  requires  the  consent  of  all  the  members.  Burmester  v.  Norris, 
6  Exch.  796  ;  8.  c.  8  Eng.  L.  &  Eq.  487. 

9  Post,  §§  56,  181,  212. 

[*74] 


§  20.  ORDINARY    CORPORATE    POWERS.  81 

11.  But  this  right  of  the  minority  of  the  shareholders  to  inter- 
fere *  by  way  of  injunction,  to  restrain  the  majority  from  obtaining 
permission  to  alter  the  constitution  of  the  corporation,  may  un- 
doubtedly be  lost  by  acquiescence.10  Thus  where  the  share- 
holders knew  of  the  purpose  of  the  directors  to  apply  the  funds 
of  the  company  to  the  construction  of  part  only  of  the  road,  to  the 
abandonment  of  the  remainder,  and  remained  passive  for  eighteen 
months,  while  the  directors  were  applying  large  sums  to  the 
completion  of  this  part  only,  the  court  refused  to  interfere  by 
injunction.10 

12.  And  if  one  of  the  shareholders,  who  has  acquiesced  in  the 
diversion  of  the  funds,  be  joined  in  the  suit  with  others  who  have 
not,  no  relief  can  be  afforded.11  And  there  can  be  no  doubt  of  the 
soundness  of  this  principle,  although  the  effect  of  its  application 
may  be  to  produce  a  fundamental  alteration  of  the  constitution  of  a 
corporation,  and  thus  to  enable  them  to  do  what  they  had  no  power 
before  to  do.  But  this  is  only  applying  to  the  case  the  principle  of 
implied  consent  of  all  the  shareholders,  resulting  from  silence, 
which  is  all  that  is  requisite  in  any  case,  to  legalize  the  alteration 
of  the  charter  of  a  private  corporation. 

13.  It  is  said  in  one  case  by  an  eminent  equity  judge,  Vice- 
Chancellor  Stuart : 12  "  although  generally  speaking"  "  there  can 
be  no  doubt  of  the  soundness  of  the  principle,  that  the  directors 
and  the  majority  of  the  company  may  be  restrained  from  employing 
money,  subscribed  for  one  purpose,  for  another,  however  advan- 
tageous," "  and  although  this  is  the  law  as  to  joint-stock  com- 
panies, unincorporated  and  unconnected  with  public  duties*  or 
interests,  it  has  not  been  applied  to  corporate  companies  for  a  pub- 
lic undertaking,  involving  public  interests  and  public  duties  under 
the  sanction  of  parliament.     In  such  cases  the  court  of  chancery 

10  Graham  v.  Birkenhead,  &c.  Railway,  2  Mac.  &  G.  146 ;  s.  c.  G  Eng.  L.  & 
Eq.  132;  Beman  v.  Rufford,  1  Sim.  (N.  S.)  550.  Lord  Cranwortk  says,  "  This 
court  will  not  allow  any  of  the  shareholders  to  say,  that  they  are  not  interested 
in  preventing  the  law  of  their  company  from  being  violated."  Ffooks  v.  London 
&  S.  W.  R.,  1  Sm.  &  G.  142  ;  s.  c.  19  Eng.  L.  &  Eq.  7.  But  one  creditor  of 
a  corporation  cannot,  by  injunction,  restrain  another  creditor  of  the  same  grade 
from  obtaining  prior  payment  by  virtue  of  an  execution  issued  upon  a  prior 
judgment.     Gravenstine's  Appeal,  49  Penn.  St.  310. 

11  Ffooks  v.  London  &  S.  W.  R.,  1  Sm.  &  G.  142;  s.  c.  19  Eng.  L.  &Eq.  7, 
opinion  of  Stuart,  V.  C.  and  cases  cited. 

12  Ffooks  v.  London  &  S.  W.  R.  supra, 

vol.  i.  6  [*75] 


82  PROCEEDINGS    UNDER    THE    CHARTER.  PART  II. 

has  *  permitted  the  use  of  the  corporate  seal,  and  the  moneys  of  the 
company,  to  obtain  the  sanction  of  parliament  to  purposes  ma- 
terially altering  the  interests  of  the  shareholders,  according  to  the 
contract  inter  se.  This  was  done  in  the  case  of  Stevens  v.  South 
Devon  Railway  Company."13  The  learned  judge  therefore  con- 
cludes,  that  although  the  principle  first  stated  by  him  may  apply 
to  the  case  of  public  railway  companies  in  general,  "  it  must  be 
taken  to  be  subject  to  many  qualifications,  and  requiring  much 
caution  and  consideration"  in  its  application. 

14.  The  same  learned  judge  further  adds,  upon  the  important 
subject  of  such  proceeding  being  taken  by  one  in  the  interest  of  a 
rival  company  :  "  It  has  been  suggested  that  this  suit  is  constituted 
to  serve  the  purposes  of  another  set  of  shareholders.  If  it  had 
been  established  that  the  real  object  of  seeking  this  injunction  had 
been  to  serve  the  interests  of  a  rival  company,  I  should  have  con- 
sidered that  a  circumstance  of  great  importance  in  determining 
the  rights  of  the  plaintiffs  to  any  relief.  No  doubt  it  has  been  held 
in  several  cases,  that  the  mere  fact  that  the  plaintiffs  are  share- 
holders in  a  rival  company  is  no  reason  for  the  court  in  a  proper 
case  refusing  its  aid  to  prevent  the  violation  of  contracts.  But 
when  the  fact  is  established,  that,  under  the  pretence  of  serving 
the  interest  of  one  company,  the  shareholders  in  a  rival  company 
by  purchasing  shares  for  the  purpose  of  litigation,  can  make  this 
court  the  instrument  of  defeating  or  injuring  the  company  into 
which  they  so  intrude  themselves,  in  order  to  raise  questions  and 
disputes  on  matters  as  to  which  all  the  other  members  of  the  com- 
pany may  be  agreed,  I  cannot  consider  that  in  such  a  case  it  is  the 
province  of  this  court  ordinarily  to  interfere.  In  questions  on  the 
law  of  contracts,  where  there  is  a  discretionary  jurisdiction  in  this 
court,  circumstances  affecting  the  condition  of  the  contracting 
parties,  and  the  origin  and  situation  of  their  rights  in  relation  to 
the  subject-matter  of  the  contract,  deserve  great  consideration. 

15.  But  in  a  later  English  case 14  it  was  determined  by  Vice- 
Chancellor  Wood,  that  the  court  will  not,  upon  the  application  of 
the  minority  of  the  members  of  a  corporation,  interfere  with  a 
resolution  of  the  company  voluntarily  to  wind  up  its  concerns 
unless  the  resolution  was  obtained  by  fraud,  or  by  overbearing 
conduct,  or  by  improper  influences. 

13  13  Beavan,  48;  s.  c.  12  Eng.  L.  &  Eq.  229;  s.  c.  9  Hare,  313. 

14  lie  The  Imperial  Mercantile  Credit  Association,  12  Jur.  (N.  S.)  739. 

[*7b] 


§21. 


MEETINGS   OF   COMPANY. 


83 


*  SECTION    IV. 


Meetings  of  Company. 


1.  Meetings,  special  and  general. 

2.  Special,  must  be  notified  as  required. 

3.  Special  and  important  matters,  named  in 

notice. 

4.  Notice  of  general  meetings  need  not  name 

business. 

5.  Adjourned  meeting,  still  the  same. 

6.  Company  acts  by  meetings,  by  directors,  by 

agents. 

7.  Courts   presume  meetings  held  at  proper 

place. 


8.  Every  shareholder  may  vote,  but  not  by 

proxy. 

9.  General  owner  of  shares  entitled  to  vote 

and  act  as  member. 

10.  Trustees  act  as  owners. 

11.  If  a  corporation  issue  stock  in  the  name 

of  B.  to  secure  a  debt,  which  it  owes  to 
A.,  no  one  can  vote  upon  the  same. 

12.  Shares  held  as  collateral  security  cannot 

be  changed. 


§21.  1.  By  the  English  statutes  meetings  of  railway  companies 
are  distinguished  as  "  ordinary  "  and  "  extraordinary."  That  dis- 
tinction, in  this  country,  is  expressed  by  the  term  general  and 
special.  Ordinary  meetings  are  the  annual  and  semi-annual  meet- 
ings of  the  company,  and  such  others  as  are  held  at  stated  times 
and  for  defined  objects,  according  to  the  provisions  of  the  charter 
and  by-laws  ;  and  extraordinary  meetings  are  such  as  are  held  by 
special  call  of  the  directors,  or  other  officer,  whose  duty  it  is  made 
to  call  meetings  of  the  company,  in  certain  contingencies  usually 
denned  by  the  statutes.1 

2.  Notice  of  special  meetings  must  be  issued  in  conformity  to 
the  charter  and  statutes  of  the  corporation,  and,  where  no  special 
provision  exists,  must  be  given  personally  to  every  member.2 

3.  Notice  of  special  meetings  should  ordinarily  specify  the  gen- 
eral purpose  and  object  of  the  call.  But  it  is  said  this  is  not 
indispensable,  when  it  is  for  the  transaction  of  ordinary  business, 
and  that  giving  security  for  the  debt  of  a  bank,  by  mortgage  of 

1  8  &  9  Vict.  c.  16,  §  66.  . 

2  Wiggin  v.  Freewill  Baptist  Society,  8  Met.  301.  This  view  seems  to  be 
countenanced  by  Lord  Kenyon,  in  Rex  v.  Faversham,  8  T.  R.  352 ;  Rex  v.  May, 
5  Burrow,  2681 ;  The  King  v.  Langhorn,  4  Ad.  &  El.  538.  See,  also,  cases 
cited  in  the  argument  of  this  case.  But  all  the  cases  agree,  that  if  the  members 
attend  even  without  notice,  it  is  sufficient.  The  King  v.  Theodorick,  8  East, 
543.  A  meeting  may  be  general  for  most  purposes,  and  also  special  for  a  par- 
ticular purpose ;  Cutbill  v.  Kingdom,  1  Exch.  494. 

[*77] 


g  1  PROCEEDINGS    UNDER   THE   CHARTER.  PART  II. 

its  real  estate,  is  oi'  this  character.8  But  where  the  business  is 
unusual  and  important,  as  the  election  or  amotion  of  an  officer, 
tin'  making  of  by-laws,  or  other  matter  affecting  the  vital  interests 
and  fundamental  operations  of  the  corporation,  and  on  a  day  not 
*  appointed  for  the  transaction  of  business  of  this  character,  or  of 
all  business  of  the  corporation,  the  notice  must  state  the  business, 
or  the  action  upon  it  will  be  held  illegal  and  void.4 

I.  But,  as  a  general  rule,  it  may  be  safely  affirmed,  perhaps, 
that  in  regard  to  general  meetings  of  the  company,  which  are  for 
the  transaction  of  all  business,  no  notice  of  the  particular  business 
to  be  done  is  necessarj .  And  all  the  members  of  the  corporation 
are  presumed  to  have  notice  of  their  stated  meetings  and  are  bound 
by  the  proceedings  at  such  meetings  :  but  there  is  no  presumption 
that  they  know  what  is  done  at  such  meetings,  so  as  to  affect  them 
with  notice  of  any  thing  done  there  contemplating  future  action 
at  any  other  time  than  the  stated  meetings.6 

5.  The  adjournment  of  a  general  meeting  is  not  a  special  meet- 
ing, hut  the  mere  continuance  of  the  general  meeting,  and  requires 
no  notice  of  the  business  to  he  transacted.5  But  if  the  adjourned 
meeting  be  for  the  transaction  of  any  other  business  than  the  mere 
completion  of  the  unfinished  business  of  the  stated  or  special  meet- 
ing, as  the  case  may  he  ;  and  more  especially  where  the  business 
is  of  a  character  which  could  not  have  been  legally  transacted  at 
the  former  meeting,  it  will  not  afford  any  warrant  for  its  legality 
that  it  is  done  at  an  adjourned  meeting  from  one  legally  consti- 

3  Savings  Bank  v.  Davis,  8  Conn.  191. 

•  Hex  v.  Doncaster,  2  Burr.  73S ;  Angell  &  Ames,  §§  488-496.  In  the  case 
of  Zabriskie  v.  C.  C.  &  C.  Railw.,  before  the  District  Court  for  the  Northern 
District  of  Ohio,  10  Am.  Railw.  Times,  No.  15;  s.  C.  affirmed  23  How.  (U.  S.) 
3S1  ;  this  subject  i>  discussed  by  Mr.  Justice  McLean,  and  he  concludes,  that 
where  the  question  to  be  determined  by  the  company  was  the  guaranty  of  the 
bonds  of  a  connecting  railway  to  a  large  amount,  under  the  statute  of  the  state, 
which  reijuired  the  consent  of  a  meeting  of  the  shareholders,  in  which  two-thirds 
of  the  capita]  stock  should  be  represented,  it  was  indispensable  that  the  call  for 
the  meeting  should  state  the  business  to  be  transacted,  and  should  be  given  long 
enough  before  the  time  of  the  meeting  to  enable  the  remotest  shareholders  in  the 
country  to  obtain  notice  and  be  able  to  attend,  or  communicate  with  their  agents, 
or  proxies,  and  also  to  enable  the  resident  agents  of  foreign  shareholders  to  com- 
municate with  the  owners.  This  seems  but  a  just  and  reasonable  limitation  upon 
the  power  of  corporations,  in  regard  to  special  meetings. 

0  Warner  r.  .Mower,  11  Vt.  o$o;  s.  c.  1  Redf.  Am.  Railw.  Cases,  78;  Wills 
v.  Murray,  4  Exch.  843. 

6  The  People  r.  Batchelor,  22  N.  Y.  128. 

[*78] 


§  21.  MEETINGS   OP   COMPANY.  85 

tuted  originally.7  But  the  publicity  and  general  notoriety  of  a 
transaction  may  be  sufficient  *  ground  for  presuming  knowledge  of 
the  appointment  of  one  to  a  corporate  office,  even  to  the  extent  of 
subjecting  such  corporator  to  a  penalty  for  non-acceptance.8 

6.  By  the  English  statutes,  railways  may  act  in  either  of  three 
modes  :  First,  By  the  general  assembly  of  the  shareholders,  which, 
as  between  them  and  the  directors  and  other  agents  of  the  com- 
pany, has  supreme  control  of  its  affairs ;  Second,  By  its  directors ; 
Third,  By  its  duly  constituted  agents.9  The  same  general  princi- 
ple is  applicable  in  this  country,  and  at  common  law. 

7.  And  where  the  by-laws  require  the  meetings  of  the  company 
to  be  held  at  a  particular  place,  as  the  counting-house  of  the 
company,  and  the  record,  or  evidence  does  not  show  that  the 
meetings  were  held  at  a  different  place,  it  will  be  presumed  they 
were  held  at  the  place  designated.10 

8.  Every  shareholder  is,  ordinarily,  entitled  to  participate  in  the 
meetings  of  members  of  the  corporation  duly  called,  and  to  vote 
upon  all  his  shares,  according  to  the  mode  prescribed  in  the  char- 
ter and  by-laws  of  the  company,  and  in  conformity  with  the  gen- 
eral laws  of  the  state.  But  it  seems  not  well  settled  whether  a 
by-law  of  the  corporation  will  be  sufficient  to  entitle  the  members 
to  vote  by  proxy,  and  whether  some  legislative  sanction  is  not 
requisite  to  that  effect.11  But  where  the  charter  provided  that 
"  each  person  being  present  at  an  election  shall  be  entitled  to 
vote,"  it  was  held  to  mean  actual  presence,  and  votes  by  proxy 
were  properly  excluded.12 

9.  The  question  is  sometimes  made,  where  shares  are  held  by 
creditors  as  collateral  security  for  debts,  which  party,  the  debtor 
or  the  creditor,  is  entitled  to  represent  the  shares,  so  held,  in  the 
meetings  of  the  company.     Upon  general  principles  the  party  who 

7  People  v.  Batchelor,  22  N".  Y.  128;  Scadding  v.  Lorant,  5  Eng.  L.  &  Eq. 
16.     See  Smith  v.  Law,  21  N.  Y.  296. 

8  City  of  London  v.  Vanacre,  5  Mod.  438. 

9  Walford  on  Railways,  70. 

10  McDaniels  v.  Flower  Brook  Man.  Co.,  22  Vt.  274. 

11  State  v.  Tudor,  5  Day,  329 ;  where,  in  mere  business  corporations,  it  was 
considered  that  a  by-law  was  sufficient  to  give  the  power  to  vote  by  proxy.  But 
in  Taylor  v.  Griswold,  2  Green,  222,  the  contrary  opinion  is  maintained.  See 
also,  2  Kent,  Coram.  294.  There  seems  no  question  that  in  public  and  elee- 
mosynary corporations  the  members  must  attend  in  person. 

12  Broom  v.  Coram.  2  Phill.  156. 

[*79] 


86  PROCEEDINGS    UNDER   THE    CHARTER.  PART  II. 

pledges  or  mortgages,  or  in  any  other  mode  hypothecates,  shares  as 
security  for  a  debt,  is  still  to  be  regarded  as  the  general  owner, 
and  entitled  to  all  the  privileges  and  subject  to  all  the  responsibili- 
ties of  owner.18 

10.  Trustees,  whether  testamentary  or  executors,  guardians,  or 
others  holding  shares  in  joint-stock  companies  for  the  ultimate 
benefit  of  others,  are  generally  entitled  to  act  as  members,  and  are 
responsible  as  such,  without  reference  to  the  extent  of  their  in- 
terest or  the  amount  of  the  trust  estates.14  But  in  New  York  even 
this  is  denied  where  the  cestui  que  trust  is  sui  juris,  and,  as  said, 
the  latter  is  entitled  to  vote  upon  the  shares  and  to  act  as  member, 
by  virtue  of  the  interest  vested  in  the  trustee  for  his  benefit.15 

11.  And  in  California,16  where  a  certificate  of  shares  was  issued 
by  a  corporation  in  the  name  of  B.,  in  order  to  secure  a  debt  of  the 
corporation  due  to  A.,  it  was  held  that  the  same  was  illegally  issued 
and  that  no  one  could  vote  upon  it.  B.  could  not,  because  he  was 
a  mere  trustee  for  A.,  and,  as  between  them,  whatever  interest  was 
created  vested  beneficially  in  A.  And  A.  could  not  vote  upon  the 
stocks  because  his  property  was  not  that  of  the  general  owner,  but 
that  of  a  pledgee.  And  the  corporation  could  not  vote  upon  its  own 
stock. 

12.  Where  shares  are  passed  as  collateral  security,  it  is  incum- 
bent upon  the  holder  to  return  the  identical  shares  received  by 
him,  whenever  the  purposes  of  the  pledge  are  answered.  And  if 
the  shares  have  been  sold,  and  others  purchased  by  the  transferee 
at  a  less  price,  the  transferor  will  be  entitled  to  the  difference. 
But  if  the  transferor  have  parted  with  the  shares,  before  he  is 
aware  that  they  have  been  changed,  he  cannot  maintain  a  bill  to 
restore  the  shares  originally  transferred,  since  he  will  be  bound  to 
first  restore  those  received  by  him.17 

13  dimming  v.  Prescott,  2  Yo.  &  Coll.  Eq.  Exch.  488  ;  Ex  parte  Willcocka,  7 
Cow.  402 ;  Barker,  Ex  parte,  6  Wend.  509 ;  McDaniels  v.  Flower  Brook  Man. 
Co.,  22  Yt.  274.  Tlie  same  is  declared  by  statute  in  Massachusetts.  Gen.  Stat. 
c.  68,  §  L3. 

14  Hoare,  Ex  parte,  2  Johns.  &  Hem.  229;  s.  c.  8  Jur.  (N.  S.)  713;  Fearne 
&  Deane's  Case,  Law  Rep.  1  Ch.  App.  231. 

15  Holmes,  Ex  parte,  5  Cow.  426.     See  post,  §  40,  pi.  5,  and  cases  cited. 

16  Brewster  v.  Hartley,  37  Cal.  15. 

17  Langton  v.  Waite,  17  W.  R.  475. 

[*79] 


§22. 


ELECTION    OP    DIRECTORS. 


87 


*  SECTION    V. 


Election  of  Directors. 


1.  Should  be  at  general  meeting,  or  upon  spe- 

cial notice. 

2.  Shareholders  may  restrain  their  authority. 


3.  Company  bound  by  act  of  directors,  de 

facto. 

4.  Act  of  officer  de  facto,  binds  third  persons. 


§  22.  1.  The  election  of  directors  is  regarded  as  more  important 
to  the  interests  of  the  company  than  most  other  business,  inas- 
much as,  when  duly  elected,  they  hold  office  for  a  considerable 
term,  and  have  all  the  powers  of  the  corporation  in  regard  to  the 
transaction  of  its  ordinary  business,  unless  specially  restrained. 
They  should,  therefore,  be  elected  at  the  regular  meetings  of  the 
company,  and  even  vacancies  should  not  properly  be  filled  at 
special  meetings,  unless  special  notice  of  that  particular  business 
had  been  given  according  to  the  laws  of  the  company,  which  in- 
clude its  charter  and  statutes,  and  the  general  laws  of  the  state 
applicable  to  the  subject. 

2.  The  shareholders  may,  in  a  proper  assembly,  pass  statutes, 
general  or  special,  which  shall  control  the  directors,  as  between 
them  and  the  company.1      Where  the  by-laws  of  the  company 

1  But  where  the  charter  vests  the  control  of  the  concerns  of  the  company  in 
a  select  board  or  body,  the  shareholders  at  large  have  no  right  to  interfere  with 
the  doings  of  these,  their  charter  agents.  Commonwealth  v.  Trustees  of  St. 
Mary's  Church,  6  Serg.  &  R.  508;  Dana  v.  Bank  of  the  United  States,  5  Watts 
&  Serg.  223,  247;  Conro  v.  Port  Henry  Iron  Co.,  12  Barb.  27.  And  courts 
are  always  reluctant  to  interfere  with  the  conduct  of  directors  of  a  corporation, 
even  at  the  instance  of  a  majority  of  the  shareholders,  and  ordinarily  will  not, 
when  such  directors  have  acted  in  good  faith.  State  v.  The  Bank  of  Louisiana, 
6  La.  745. 

But  in  Scott  v.  Eagle  Fire  Co.,  7  Paige,  198,  it  was  held,  that  "the  directors 
of  a  joint-stock  corporation  may  be  compelled  to  divide  the  actual  surplus  profits 
of  the  company  among  its  stockholders  from  time  to  time,  if  they  neglect  or 
refuse  to  do  so,  without  any  reasonable  cause.  But  if  they  abuse  their  power  to 
make  dividends  of  surplus  profits,  by  dividing  the  unearned  premiums  received 
by  them,  without  leaving  a  sufficient  fund,  exclusive  of  the  capital  stock,  to  sat- 
isfy the  probable  losses  upon  risks  assumed  by  the  company,  it  seems  they  will 
be  personally  liable  to  such  creditors  of  the  company,  if,  in  consequence  of  ex- 
traordinary losses,  the  company  should  become  insolvent  so  as  to  be  unable  to 
pay  its  debts. 

[*80] 


SS  PROCEEDINGS    UNDER   THE    CHARTER.  PART  II. 

require  notice  of  the  meeting  for  electing  directors,  but  do  not 
specify  tin'  time  or  mode  of  such  notice,  it  must  be  given  accord- 
inn  *  to  the  requirements  of  the  general  statutes  of  the  state  upon 
the  subject.2 

:'..  Bui  the  company  cannot  object  that  its  directors,  who  have 
acted  as  such,  were  not  elected  at  a  meeting  properly  notified.3 
Nor  can  the  validity  of  the  acts  of  the  directors  be  collaterally 
called  in  question  on  the  ground  of  irregularity  in  the  notice  of 
the  meeting  at  which  the}'  were  elected.4  Where  the  charter 
fixes  the  number  of  directors,  and  vacancies  occur,  the  act  of 
the  board  is  not  thereby  invalidated,  provided  a  quorum  still 
remains.5 

4.  An  election  of  directors  will  not  be  set  aside,  because  the 
inspectors  of  the  election   were  not  sworn   as   required   by  the 

2  Matter  of  Long  Island  Railroad,  19  Wend.  37  ;  s.  c.  2  Am.  Railw.  C.  453. 

3  Sampson  v.  Bowdoinham  Steam  Mill  Co.,  36  Maine,  78.  Where  persons 
have  acted  as  directors  of  a  railway  company,  the  court  will  not  summarily 
inquire  into  the  validity  of  their  appointment.  Tindal,  C.  J.,  said:  "  If  the 
shareholders  allow  parties  to  act  as  directors,  it  may  be  they  have  no  right  to 
turn  round  in  a  court  of  justice  and  say,  that  such  parties  were  not  properly 
elected."  The  Thames  Haven  Dock  &  Railw.  Co.  v.  Hall,  5  Man.  &  Gr.  274- 
286.  In  one  case,  Port  of  London  Assurance  Company's  case,  5  DeG.,  M.  &  G. 
165  :  S.  C.  •">■">  Eng.  L.  &  Eq.  178,  one  registered  insurance  company  agreed  to  sell 
its  business  to  another  registered  insurance  company,  and  a  deed  of  assignment 
was  accordingly  executed,  whereby  the  latter  company  covenanted  to  indemnify 
the  former  against  all  claims.  After  the  business  had  been  carried  on  for  some 
time  by  the  purchasing  company,  that  company  failed,  and  both  companies  were 
wound  up  under  the  Winding-up  Acts.  On  the  official  manager  of  the  selling 
company  tendering  a  proof  against  the  purchasing  company,  in  respect  of  claims 
satisfied  by  the  selling  company,  one  part  of  the  deed  of  assignment  was  pro- 
duced having  affixed  to  it  the  seal  of  the  purchasing  company,  but  another  part, 
alleged  to  have  been  executed  by  the  selling  company,  was  not  forthcoming. 

Held,  fust,  that  after  what  had  taken  place,  it  was  unnecessary  to  determine 
whether  the  selling  company  had  executed  the  purchase-deed,  or  whether  its 
din-  tors  hail  exceeded  their  powers  in  making  the  sale. 

Secondly,  that  where  a  purchaser  has  enjoyed  the  subject-matter  of  a  contract, 
every  presumption  must  be  made  in  ftivor  of  its  validity. 

Thirdly;   that    if  all    the   proceedings   on  the   part  of  the   directors   of  the 

purchasing  company,  with  reference  to  the   purchase,  had  not  been  in  strict 

accordance  with  their  own  deed  of  settlement,  still,  if  the  contract  with  the  other 

any  was  the  means  of  the  purchasing  company  coming  into  existence,  they 

could  cot  acl  in  eontravention  of  that  contract. 

'  I  Ihamberlain  v.  Painesville  &  Hudson  Railw.  Co.,  15  Ohio  (N.  S.),  225. 

6  Walford  on  Railw.  71,  72 ;  Thames  Haven  R.  v.  Rose,  4  M.  &  G.  552. 

[*81] 


23. 


MEETINGS   OF   DIRECTORS. 


89 


statute.  This  statute  is  merely  directory,  and,  so  far  as  third  per- 
sons are  *  concerned,  it  is  sufficient  that  the  inspectors  were 
elected  and  entered  upon  the  duties  of  the  office,  and  became 
officers  de  facto? 


SECTION    VI. 


Meetings  of  Directors. 


1.  All  should  be  notified  to  attend. 

2.  Adjourned  meeting  still  the  same. 

3.  Board  not  required  to  be  kept  full. 

4.  Usurpations  tried  by  shareholders  or  courts. 

5.  Usage  will  often  excuse  irregularities. 


6.  Decisions  of  majority  valid. 

n.  8.  Records  of  proceedings,  evidence. 

7.  The  action  must  be  taken  at  a  formal  meet- 

ing. 


§  23.  1.  As  a  general  rule,  where  corporate  powers  are  vested 
in  certain  members,  whether  the  whole  body  of  the  shareholders, 
the  directors,  or  a  committee,  and  the  general  laws  of  the  state, 
the  charter  of  the  company,  or  the  corporate  statutes,  contain  no 
directions  in  regard  to  'assembling  the  body,  it  is  requisite  to  give 
due  legal  notice  to  each  member.  Accordingly,  when  by  the  rules 
of  a  friendly  society  the  power  of  electing  officers  was  vested  in  a 
committee  of  eleven,  at  a  meeting  of  the  committee,  where  ten  of 
the  members  were  present,  the  eleventh  not  having  received 
notice,  and  the  defendant  was  removed  from  the  office  of  treasurer, 
and  the  plaintiff  appointed  in  his  stead  by  a  majority  of  votes,  it 
was  held  that  the  election  was  void,  although  the  absent  committee- 
man had,  for  a  considerable  period,  absented  himself  from  the 
meetings,  and  intimated  an  intention  not  to  attend  any  more,  and 
although  the  defendant  himself  had  demanded  a  poll  at  the 
election,  and  was  now  objecting  to  its  validity.1 

6  Matter  of  Mohawk  &  Hudson  River  Railw.,  19  Wend.  135;  s.  c.  2  Am. 
Railw.  C.  460. 

1  Roberts  v.  Price,  4  C.  B.  231.  In  the  course  of  the  argument,  Cresswdl,  J. 
referred  to  The  King  v.  Langhorn,  4  Ad.  &  Ellis,  538,  and  in  giving  his  opinion 
said:  "This  case  seems  to  me  directly  applicable."  In  a  case  in  the  House 
of  Lords,  Smyth  v.  Darley,  2  II.  L.  Cases,  789,  803,  it  is  said:  "The  election 
being  by  a  definite  body,  on  a  day,  of  which,  till  summons,  the  elector's  had  no 
notice,  they  were  all  entitled  to  be  specially  summoned  ;  and  if  there  were  any 
omission  to  summon  any  of  them,  unless  they  all  happened  to  be  present,  or 
unless  those  not  summoned  were  beyond  summoning  distance,  as,  lor  instance, 

[*82] 


90  PROCEEDINGS  UNDER  THE  CHARTER.         PART  II. 

P.uf  an  adjourned  general  meeting  of  directors,  which  is 
provided  for  by  the  general  regulations  of  the  board,  and  is  for  the 
transaction  of  the  general  business  of  the  company,  requires  no 
special  notice  of  either  time  or  place,  or  of  the  business  to  be 
transacted.2 

•"..  But  where  the  charter  of  a  railway  provides  that  its  business 
shall  be  carried  on  under  the  management  of  twelve  directors,  to 
be  elected  in  a  particular  mode,  pointed  out,  and  that  where 
vacancies  shall  occur  it  shall  be  lawful  for  the  remaining  directors 
to  fill  them,  it  was  held  that  this  provision  did  not  require  that  the 
board  should  be  always  full ;  but  was  merely  directory,  as  to  the 
mode  of  filling  vacancies.3 

4.  Where  it  is  complained  that  the  existing  board  of  directors 
have  usurped  their  places  in  violation  of  the  wishes  of  the  ma- 
jority of  the  shareholders,  the  question  should  be  referred  to  a 
meeting  of  such  shareholders,4  or  it  may  be  tried  upon  a  quo  war- 
ranto? 

5.  But  in  practice,  in  this  country,  it  is  believed  that  most  of 
the  routine  business  of  railway  and  other  joint-stock  commercial 
companies  is  transacted  through  the  agency  of  sub-committees  of 
the  board  of  directors,  and  that,  where  the  voice  of  the  board  is 
taken  it  is  more  commonly  done  without  any  formal  assembly  of 
the  board.  And  long-established  usage  as  to  particular  companies, 
in  regard  to  the  mode  of  conducting  an  election,  has  been  held  of 
binding  force  in  regard  to  such  company.6  And  the  same  course 
of  reasoning  might  induce  courts  to  sanction  a  practice,  which  had 
become  universal  from  its  great  convenience,  although  not  strictly 

abroad,  there  could  not  be  a  good  electoral  assembly ;  and  even  an  unani- 
mous election  by  those  who  did  attend,  would  be  void.11  Post,  §  211;  Great 
Western  R.  v.  Rushout,  5  De  G.  &  S.  290;  s.  c.  10  Eng.  L.  &  Eq.  72. 

-  Ante,  §  21.  Wills  v.  Murray,  4  Exch.  843.  But  see  Reg.  v.  Grimshaw,  10 
Q.  B.  717. 

3  Thames  Haven  Dock  and  Railway  Co.  v.  Rose,  4  Man.  &  Gr.  552 ;  ante, 
§  21  ;   Wills  r.  .Murray,  4  Exch.  843. 

4  Post,  §  211. 

5  Post,  §166. 

,;  Attorney-General  v.  Daw,  cited  1  Vesey,  Sen.  419.  It  would  savor  of  bad 
faith  to  allow  the  business  of  the  company  to  be  transacted  in  a  particular  mode, 
and  then  to  attempt  to  repudiate  the  acts  of  their  agents,  because  the  transac- 
tion proved  disadvantageous,  when  they  were  in  a  condition  to  take  the  benefit 
of  it  if  it  proved  successful. 
[*83] 


§  23.  MEETINGS   OF   DIRECTORS.  91 

in  accordance  with  the  principles  of  the  decided  cases  upon  analo- 
gous subjects,  or  the  results  of  a  priori  reasoning. 

6.  The  decision  of  a  majority  of  the  board  of  directors  is  usually 
*  regarded  as  binding  upon  the  company  ;  and  the  assembling  of  a 
majority  will  be  treated  as  a  legal  quorum  for  the  transaction  of 
business,  unless  the  charter  or  by-laws  contain  some  specific  pro- 
vision upon  the  subject ; 7  and  notice  to  the  absent  directors  will 
be  presumed  unless  the  contrary  appears.  The  general  rule  upon 
this  subject  is,  that  the  act  of  a  majority  of  a  body  of  public  officers 
is  binding  ;  but  that  if  they  be  of  private  appointment,  all  must  act, 
and,  in  general,  all  must  concur,  unless  there  is  some  provision  to 
accept  the  decision  of  a  majority.  In  this  respect,  railway  direc- 
tors certainly  come  under  the  former  head.  The  proper  distinction 
upon  the  general  subject  seems  to  be,  that  where  the  matter  is  of 
public  concern,  and  of  an  executive  or  ministerial  character,  the 
act  of  the  majority  of  the  board  will  suffice,  although  the  others 
are  not  consulted.  But  where  the  function  is  judicial,  involving  a 
determination  of  some  definite  question,  the  whole  body  must  be 
assembled  and  act  together.  If  the  matter  is  of  public  concern, 
the  decision  of  a  majority  will  bind ;  but  in  private  concerns,  as 
arbitrations,  all  must  concur.8 

7  Cram  v.  Bangor  House,  3  Fairfield,  354 ;  Sargent  v.  Webster,  13  Met.  497  ; 
2  Kent,  Comm.  293  and  notes ;  The  King  v.  Whitaker,  9  B.  &  C.  648 ;  Com- 
monwealth v.  Canal  Commissioners,  9  Watts,  466  ;  Ex  parte  Wilcocks,  7  Cowen, 
402 ;  Field  v.  Field,  9  Wend.  394,  403,  where  it  is  held,  that  in  regard  to  the 
body  of  the  stockholders,  any  number  who  attend  is  a  quorum  for  doing  business, 
if  the  others  be  properly  summoned.  But  as  to  the  directors,  it  is  requisite  that 
a  majority  attend.  2  Kent,  Comm.  293  ;  Cahill  v.  Kalamazoo  Ins.  Co.,  2  Doug. 
(Mich.)  124;  Holcomb  v.  N.  H.  D.  B.  Co.,  1  Stockton,  Cb.  457. 

8  Green  v.  Miller,  6  Johns.  39  ;  The  King  v.  Great  Marlow,  2  East,  'J  H  ; 
Battye  v.  Gresley,  8  East,  319 ;  Rex  v.  Coin  St.  Aldwins,  Burr.  Settl.  Cas.  136 ; 
The  King  v.  Winwick,  8  T.  R.  454.  But  it  has  never  been  held  that  the  entire 
board  of  directors  must  assemble ;  it  is  enough  if  all  be  summoned,  and  a 
majority  attend.  See  note  7.  Edgerly  v.  Emerson,  3  Foster,  555.  If  the 
doings  of  directors  are  not  recorded,  they  may  be  proved  by  parol.  lb.  The 
president  has  a  right  to  vote  upon  all  questions  to  be  determined  by  the  presi- 
dent and  directors.     McCullough  v.  Annapolis  &  Elk  Ridge  R.  4  Gill,  58. 

The  records  of  the  clerk  of  a  railway  company,  of  the  proceedings  of  the 
directors,  in  making  calls,  may  be  used  as  evidence  by  the  company  in  suits  for 
calls,  against  one  who  subscribed  for  shares,  and  was  one  of  the  grantees  ol  the 
charter  and  a  director  at  the  time  of  making  such  calls,  and  who  had  exercised 
the  rights  of  a  shareholder  from  the  first.  White  Mountain  R.  v.  Eastman,  34 
N.  H.  124.     As  to  the  effect  of  the  records  of  the  doings  of  the  corporation  kept 

[*84] 


92 


PROCEEDINGS    CfNDER   THE    CHARTER. 


PART  II. 


But  where  the  authority  of  a  quorum  of  directors  is  required 
for  the  execution  of  a  bond,  it  must  be  given  at  a  formal  meeting, 
wherea!  the  members  of  the  quorum  are  all  present  at  once.9 


>i;ction   VII. 


Qualification  of  Directors. 


•  contractor  and  director, 
nicer  and  din 
by  virtue  of  stock  mort- 
:  d. 


1.   Bankruptcy   or  absence    will    not   vacate 

office. 
5.   Company  compelled  to  Jill  vacancies  in 

board. 


\  24.  1.  By  the  Companies'  Clauses  Consolidation  Act,1  it  is 
provided,  that  no  person  interested  in  any  contract  with  the  com- 
pany shall  lie  a  director,  and  no  director  shall  be  capable  of  being 
interested  in  any  contract  with  the  company  ;  and  if  any  director, 
subsequent  to  his  election,  shall  be  concerned  in  any  such  con- 
the  office  of  director  shall  become  vacant,  and  he  shall  cease 
as  su.h.  Under  this  statute  it  was  held,  that,  if  a  director 
enters  into  a  contract  with  the  company,  the  contract  is  not  thereby 
rendered  void,  but  the  office  of  director  is  vacated.2 

■1.  But  it  has  been  held,  that  being  a  member  of  a  banking  com- 
wlio  were  the  bankers  and  treasurers  of  the  railway,  and 
win*,  as  such,  received  and  gave  receipts  for  calls,  and  paid  checks 
drawn  by  the  directors,  will  not  disqualify  one  from  acting  as 
director,  but  that  this  clause  only  applied  to  such  contracts 
re  made  with  the  company  in  the  prosecution  of  its  enter- 
prise.3 

by  their  own  officer,  being  evidence,  but  not  indispensable  evidence  of  such  facts, 
when  proved  by  third  parties,  see  Hudson  v.  Carman,  41  Me.  84;  Coffin  v.  Col- 
lin-. 17  M.  140;  Penobscot  Railw.  v.  White,  41  Me.  512.  See,  also,  Ind.  & 
Cin    I:,  v.  Jewett,  L6  [nd.  273. 

'  D'Arcy  v.  Tamar,  K.  &  C.  Railw.,  4  II.  &  C.  463;  s.  c.   12  Jur.   (N.  S.) 

1  8  &  9  Vict,  c  16. 
Foster  v.  Oxford  \V.  &  W.  R.,  13  C.  B.  200;  s.  c.  14Eng.  L.  &  Eq.  306. 
This  case  is  discussed  in  a  later  case  in  the  House  of  Lords.     Aberdeen  Railway 
ikie,  1  McQueen,  11.  L.  161. 

ish.  &  Man.  Railw.  v.  Woodcock,  7  M.  &  W.  574 ;  s.  c.  2  Railw. 
I  .  .  22. 

[*85] 


§  24.  QUALIFICATION   OP   DIRECTORS.  93 

3.  Where  the  qualification  of  a  director  consisted  in  owning  a 
certain  number  of  the  shares,  the  qualification  is  not  lost  by  a 
mortgage  of  the  shares.4 

4.  Neither  the  bankruptcy  nor  absence  of  a  director,  and  volun- 
tarily *  ceasing  to  act  as  such,  will  put  an  end  to  his  character  of 
director,  unless  it  be  so  provided  in  the  deed  of  settlement.5 

5.  If  shareholders  are  dissatisfied  with  the  board  of  directors  not 
being  full,  that  may  be  a  ground  of  applying  for  a  mandamus  to 
compel  the  company  to  complete  the  number.6 

4  Gumming  v.  Prescott,  2  Y.  &  Coll.  Eq.  Exch.  488. 

5  Phelps  v.  Lyle,  10  Ad.  &  Ellis,  113.  But  if  one  abscond  from  his  creditors 
the  office  is  thereby  vacated.     Wilson  v.  Wilson,  6  Scott,  540. 

6  Thames  Haven  Dock  and  Railway  v.  Rose,  3  Railw.  C.  177  ;  s.  c.  4  Man. 
&  Gr.  552.  Maule,  J.  Mozley  v.  Alston,  1  Phillips,  790.  By  the  Lord  Chan- 
cellor. 

[*86] 


94 


PREROGATIVE    FRANCHISES. 


PART  II. 


♦CHAPTER    V. 


l'UKROGATIVE    FRANCHISES. 


-  immunication   in   a 
■  ■  prerogative  franchise. 


2.  Such  a  grant  confers  powers  pertaining 
exclusively  to  sovereignty,  as  taking  tolls, 
and  the  right  of  eminent  domain. 


8  J.">.  1.  Railways  possess  also  many  extraordinary  powers  or 
franchises  which  partake  more  or  less  of  the  quality  of  sovereignty, 
and  which  it  is  not  competent  for  the  legislature  even  to  delegate 
to  ordinary  corporations.  These  are  sometimes  called  the  preroga- 
tive franchises  of  the  corporation.  They  exist  in  banks,  which 
practically  supply  the  currency  of  the  country,  or  its  representative, 
and  railways,  which  have  already  engrossed  the  chief  business  of 
internal  communication  in  this  country,  and  almost  throughout  the 
civilized  world.  And  both  currency  and  internal  communication 
between  different  portions  of  a  state  are  exclusively  the  preroga- 
tives of  sovereignty. 

2.  In  saying  that  it  is  not  competent  for  the  legislature  to  con- 
fer prerogative  franchises  upon  all  corporations,  nothing  more  is 
intended  than  that  these  prerogative  franchises  do  not  appertain  to 
all  the  operations  of  business,  and  must  therefore  of  necessity  be 
limited  to  those  persons,  whether  natural  or  artificial,  which  are 
occupied  in  matters  of  a  sovereign  or  prerogative  character,  and 
which  thus  render  an  equivalent  for  the  franchises  conferred.1 
This  subject  will  be  discussed  more  in  detail  under  the  titles  of 
Tolls  and  Eminent  Domain. 

'  State  o.  Boston,  Concord,  &  Montreal  R.  Co.,  25  Vt.  433,442,443;  s.  c. 
1  Redf.  Leading  Am.  Railway  Cases,  81.  The  right  to  build  and  use  a  railway, 
and  take  tolls  or  {area,  in  a  franchise  of  the  prerogative  character,  which  no  per- 
son can  legally  exercise  without  some  special  grant  of  the  legislature.  But  it  is 
competent  lor  the  legislature  to  confer  this  franchise  upon  a  foreign  corporation, 
so  as  to  eo&ble  it  to  take  land  for  the  purpose  of  constructing  a  public  improve- 
ment in  the  Btate.  Morris  'anal  and  Banking  Co.  v.  Townsend,  24  Barb.  658. 
what  title  Bhall  be  acquired  by  such  foreign  corporation,  and  whether  the 
proposed  amendment  will  be  likely  to  prove  beneficial  to  the  citizens  of  the  state, 
is  a  question  solelv  within  the  discretion  of  the  legislature.     lb. 

[•87] 


§26. 


POWER   OF   MAKING   BY-LAWS    OR   STATUTES. 


95 


*  CHAPTER    VI. 


BY-LAWS    AND    STATUTES. 


SECTION    I. 


Power  of  making  By-Laws  or  Statutes. 


1.  May  control  conduct  of  passengers. 

2.  Must  be  reasonable  and  not  against  law. 

3.  Power  may  be  implied,  where  not  express. 

4.  Not  required  to  be  in  any  particular  form 

unless  by  special  provision. 

6.  Model  code  of  by-laws  framed  by  board  of 

trade  in  England. 

7.  Company  meiy  demand  higher  fare  if  paid 


VI. 


Public  statutes  control  by-laws. 

Cannot  impose  penalty. 

Cannot  refuse  to  be  responsible/or  baggage. 

Statutes  operate  upon  members  from  prom- 
ulgation ;  upon  others,  from  knowledge 
of  the  same. 

Regulations,  for  accommodation  of  pas- 
sengers, must  yield  to  the  right  of  others 
to  be  carried. 


§26.  1.  It  is  incident  to  every  corporation  to  enact  by-laws  or 
statutes  for  the  control  of  its  officers  and  agents,  and  to  regulate 
the  conduct  of  its  business  generally.  And  in  the  case  of  railways 
this  includes  the  regulation  of  the  conduct  of  passengers  and 
others  who  are  in  any  way  connected  with  them  in  business, 
although  not  their  agents. 

2.*  This  power  is  subject  to  some  necessary  limitations.  Such 
by-laws  must  not  infringe  the  charter  of  the  company  or  the  laws 
of  the  state,  must  not  be  unreasonable,  and  must  be  within  the 
range  of  the  general  powers  of  the  corporation.1  And  the  ques- 
tion, whether  reasonable  or  not,  is  to  be  determined  by  the  jury 
under  instructions  from  the  court,  being  a  mixed  question  of 
law  and  fact.2     But  in  a  case   in   New  Jersey3  it   was   decided 

1  Elwood  v.  Bullock,  6  Q.  B.  383 ;  Calder  Navigation  Co.  v.  Pilling,  14  M.  & 
W.  76  ;  Child  v.  Hudson  Bay  Co.,  2  Peere  Wins.  207  ;  Angell  &  Ames,  c.  10; 
2  Kent,  Com.  296.  Davis  v.  Meeting  H.  in  Lowell,  8  Met.  331.  In  a  case 
in  Kentucky  it  is  said  the  power  of  a  corporation  to  make  by-laws  is  limited 
by  the  nature  of  the  corporation  and  the  laws  of  the  country.  It  can  make  no 
rule  contrary  to  law,  good  morals,  or  public  policy.  Sayre  v.  Louisville  Union 
Benevolent  Association,  1  Duvall,  143. 

2  Day  v.  Owen,  5  Mich.  520. 

3  Ayres  v.  Morris  &  Essex  Railw.  Co.,  5  Dutcher,  393. 

[*88] 


96  BY-LAWS    AND   STATUTES.  PART  II. 

*  that  the  question  whether  the  regulation  of  a  corporation  affecting 
third  persons  is  reasonable  is  a  question  of  fact;  but  the  validity 
of  a  by-law  of  a  corporation,  which  affects  only  its  members,  is  a 
question  of  law  to  be  determined  by  the  court.  The  general  powers 
of  business  corporations  to  enact  by-laws  was  extensively  and 
learnedly  discussed  in  a  somewhat  recent  case  which  passed 
through  the  Queen's  Bench,  the  Exchequer  Chamber,  and  was 
finally  determined  in  the  House  of  Lords.4  The  case  turned 
mainly  upon  the  reasonableness  of  the  by-law,  which  excluded  any 
person  who  had  become  bankrupt  or  notoriously  insolvent  from 
becoming  one  of  the  governing  body  of  the  company.  The  provi- 
sion of  the  by-law  was  held  entirely  reasonable;  but  that  having 
admitted  the  party  to  the  office,  he  could  not  be  removed  without 
formal  proceeding  upon  notice  and  hearing.  And  where  one  part 
of  a  by-law  is  reasonable  it  may  stand,  although  connected  with 
another  part  which  is  not  reasonable.5 

3.  By-laws  in  violation  of  common  rights  are  void.6  The  power 
to  make  by-laws  is  usually  given  in  express  terms  in  the  charter. 
Ajid  where  such  power  to  make  by-laws  is  given  in  the  charter 
upon  certain  subjects  to  a  limited  extent,  this  has  been  regarded 
as  an  implied  prohibition  beyond  the  limits  expressed,  upon  the 
familiar  maxim,  Expressum  facit  cessare  taciturn.' 

4.  By-laws,  unless  by  the  express  provisions  of  the  charter  or 
general  statutes  of  the  state,  are  not,  in  this  country,  required  to 
be  enacted  or  promulgated  in  any  particular  form,  but  only  to  be 
enacted  at  some  legal  meeting  of  the  corporation.  But  in  England 
it  is  generally  considered  requisite  that  by-laws  be  made  under  the 
common  seal  of  the  corporation,  and  that  in  regard  to  railways, 
by-laws  affecting  those  who  are  not  officers  or  servants  of  the  com- 
pany should  have  the  approval  of  the  Board  of  Trade  or  Railway 
Commissioners.8 

5.  By  many  of  the  special  railway  charters  in  England,  and  by 
the  Companies'  Clauses  Consolidation  Act  of  1845,  it  is  provided 

1  Reg.  v.  Saddlers1  Company,  6  Jur.  (N.  S.)  1113;  s.  c.  7  id.  138;  s.  c.  9 
id.  1081  ;  8.  c.  4B.  &  S.  1059;  s.  c.  10  Ho.  Lds.  Cas.  404. 

6  Reg.  v.  Lundie,  «  Jur.   (N.  S.)  640. 

■  Hayden  v.  Noyea,  5  Conn.  891;  Adley  v.  The  Whitstable  Co.,  17  Vesey, 
316  :  <  lark  a  (  ase,  5  Coke,  64.     When  the  penalty  of  a  by-law  is  imprisonment, 
id  as  againsl  Magna  <  Iharta.     But  such  power  may  be  given  by  statute. 

7  '  liild  v.  Hudson  B.  Co.,  2  Peere  Wins.  207. 
'  Walford,  249;  Hodges,  552,  553. 

[•89] 


§  26.  POWER   OF   MAKING   BY-LAWS   OR   STATUTES.  97 

*  that  railway  companies  may  make  by-laws  under  their  common 
seal  "  for  the  purpose  of  regulating  the  conduct  of  the  officers  and 
servants  of  the  company,  and  for  the  due  management  of  the  affairs 
of  the  company  in  all  respects  whatever."  And  they  have  power 
to  enforce  such  by-laws,  by  penalty,  and  by  imprisonment  for  the 
collection  of  such  penalty.  But  a  by-law  requiring  a  passenger, 
not  producing  or  delivering  up  his  ticket,  to  pay  fare  from  the  place 
of  the  departure  of  the  train,  was  held  not  to  be  a  by-law,  impos- 
ing a  penalty,  and  therefore  not  justifying  the  imprisonment  of 
such  passenger.9 

6.  The  statute  requires  a  copy  of  such  by-laws  to  be  furnished 
every  officer  and  servant  of  the  company,  liable  to  be  affected 
thereby.  The  code  of  by-laws  framed  by  the  Board  of  Trade  in 
England  for  the  regulation  of  travel  by  railway,  and  generally 
adopted  there,  is  certainly  very  judicious,  and  if  some  similar  one 
could  be  adopted  and  enforced  here,  it  would  accomplish  very 
much  towards  security,  sobriety,  and  comfort,  in  railway  travelling, 
and  tend  to  exempt  the  companies  from  much  annoyance  and  very 
often  from  loss.10 

9  Chilton  v.  London  &  Croydon  R.,  16  M.  &  W.  212;  s.  c.  5  Railw.  C.  4. 
Parke,  B.,  says  :  "  This  is  not  the  case  of  a  penalty,  but  the  mere  demand  of  a 
fare.  Any  passenger  who  does  not,  at  the  end  of  his  journey,  produce  his  ticket, 
may  have  broken  his  contract  with  the  company,  and  be  liable  to  pay  his  full  fare 
from  the  most  remote  terminus.  But  this  is  not  a  penalty  or  forfeiture,  under 
section  163,  giving  a  right  to  arrest  for  non-payment  of  a  penalty  or  forfeiture." 
See  also  the  opinion  of  Rolfe,  B.,  from  which  it  appears  that  the  by-law  was 
considered  valid. 

10  Hodges,  453.  "1.  No  passenger  will  be  allowed  to  take  his  seat  in  or  upon 
any  of  the  company's  carriages,  or  to  travel  therein  upon  the  said  railway,  with- 
out having  first  booked  his  place  and  paid  his  fare.  Each  passenger  booking 
his  place  will  be  furnished  with  a  ticket,;  which  he  is  to  show  when  required  by 
the  guard  in  charge  of  the  train,  and  to  deliver  up  before  leaving  the  company's 
premises,  upon  demand,  to  the  guard  or  other  servant  of  the  company  duly  au- 
thorized to  collect  tickets.  Each  passenger  not  producing  or  delivering  up  his 
ticket  will  be  required  to  pay  the  fare  from  the  place  whence  the  train  originally 
started. 

"  2.  Passengers  at  the  road  stations  will  only  be  booked  conditionally,  that  is 
to  say,  in  case  there  should  be  room  in  the  train  for  which  they  are  booked ;  in 
case  there  shall  not  be  room  for  all  the  passengers  booked,  those  booked  for  the 
longest  distance  shall  have  the  preference ;  and  those  booked  for  the  same  dis- 
tance shall  have  priority  according  to  the  order  in  which  they  are  booked. 

"3.  Every  person  attempting  to  defraud  the  company  by  riding  in  or  upon 
any  of  the  company's  carriages,  without  having  previously  paid  his  fare,  or  by 
VOL.  I.  7  [*90] 


98  BY-LAWS    AND    STATUTES.  PART  II. 

*  7.  Iii  a  case  in  Vermont,  it  was  held,  that  railway  com- 
panies have  the  power  to  make  and  enforce  all  reasonable  regula- 
tions in  regard  to  the  conduct  of  passengers,  and  to  discriminate 
between  fares  paid  in  the  cars  and  at  the  stations,  and  to  remove 
all  persona  from  their  cars  who  persist  in  disregarding  such  regula- 
tions, in  a  reasonable  manner  and  proper  place,  although  between 
stations. 

8.  But  this  maybe  controlled  as  to  existing  railways  even,  by 
gnu  r.il  legislation  of  the  state.  And  where  a  statute  gave  all 
railways  tbe  power  to  remove  those  who  violated  any  of  the  by- 
laws or  regulations  of  the  company  from  their  cars,  at  the  regular 
stations,  this  was  held  to  carry  an  implied  prohibition  from  remov- 
ing such  persons  at  other  points.11     And  where  one  refuses  to  pay 

ridi :i <^  in  or  upon  a  carriage  of  a  higher  class  than  that  for  which  he  has  booked 
his  place,  or  by  continuing  his  journey  in  or  upon  any  of  the  company's  carriages 
beyond  the  destination  for  which  he  has  paid  his  fare,  or  by  attempting  in  any 
other  manner  whatever  to  evade  the  payment  of  his  fare,  is  hereby  subjected  to 
a  penalty  not  exceeding  forty  shillings. 

"  4.  Smoking  is  strictly  prohibited  both  in  and  upon  the  carriages,  and  in  the 
company's  stations.  Ever}'  person  smoking  in  a  carriage  is  hereby  subjected  to 
a  penalty  not  exceeding  forty  shillings  ;  and  every  person  persisting  in  smoking 
in  a  carriage  or  station,  after  being  warned  to  desist,  shall,  in  addition  to  incur- 
ring a  penalty  not  exceeding  forty  shillings,  be  immediately,  or,  if  travelling,  at 
the  first  opportunity,  removed  from  the  company's  premises,  and  forfeit  his  fare. 

"  5.  Any  person  found  in  the  company's  carriages  or  stations  in  a  state  of 
intoxication,  or  committing  any  nuisance,  or  otherwise  wilfully  interfering  with 
the  comfort  of  other  passengers,  and  every  person  obstructing  any  of  the  com- 
pany's officers  in  the  discharge  of  their  duty,  is  hereby  subjected  to  a  penalty 
not  exceeding  forty  shillings,  and  shall  immediately,  or,  if  travelling,  at  the  first 
opportunity,  be  removed  from  the  company's  premises  and  forfeit  his  fare. 

••  6.  Any  passenger  cutting  the  linings,  removing  or  defacing  the  number- 
plates,  breaking  the  windows,  or  otherwise  wilfully  damaging  or  injuring  any  of 
the  company's  carriages,  shall  forfeit  and  pay  a  sum  not  exceeding  £5  in  addi- 
tion to  the  amount  of  damage  done." 

"  Note.  — Persons  wilfully  obstructing  the  company's  officers,  in  cases  where 
person  J  Bafety  is  concerned,  are  liable,  under  the  3  &  4  Vict.  c.  97,  §  16,  to 
be  apprehended  and  fined  £5,  with  two  months1  imprisonment  in  default  of 
payment." 

"  Stilphin  r.  Smith,  29  Vt.  160;  Chicago,  Burlington  &  Quiney  R.  v.  Parks, 
1,s  ''I.  |l"-  See  a  case  in  New  Hampshire,  in  which  it  is  held,  railways  may 
lawfully  discriminate  between  fare  paid  in  the  cars  and  at  the  stations.  Milliard 
r.  Goold,  .11  N.  11.  230,  post,  $  28,  n.  17;  post,  §  160.  See  also  Chicago  & 
Alien  Railw.  v.  Roberts,  40111.  503;  Illinois  Central  Railw.  v.  Sutton,  42  id. 
&  X.  W.  Railw.  v.  Peacock,  48  id.  253  ;  Tarbell  v.  Central  Pacific 
Railw..  :;i  CaL  616. 

[•91] 


§  26.  POWER   OF   MAKING   BY-LAWS   OR   STATUTES.  99 

fare,  and  the  train  is  stopped  for  the  purpose  of  putting  him  off 
the  train,  at  a  dwelling-house,  as  by  the  statute  of  New  York  is 
*  allowed,  the  right  of  the  conductor  is  not  affected  by  a  subsequent 
offer  to  pay  fare.12  So,  too,  one  may  be  ejected  from  the  cars  by 
the  conductor  for  disorderly  conduct,  and  in  justification,  it  is  com- 
petent to  prove  any  improper  conduct  during  the  entire  passage, 
and  this  cannot  be  controverted  by  general  evidence  of  the  good 
reputation  of  the  person  for  sobriety.  And  one  may  be  expelled, 
also,  for  refusing  to  surrender  his  ticket  to  the  conductor  on 
request,  in  conformity  with  the  general  regulations  of  the  com- 
pany.13 

9.  But  it  has  been  held,  that  a  general  power  to  make  by-laws 
for  the  regulation  of  the  use  of  a  canal,  will  not  justify  the  pro- 
prietors in  closing  the  navigation  of  the  canal  on  Sundays,14  nor 
in  making  by-laws,  subjecting  the  shares  to  forfeiture  for  non-pay- 
ment of  calls,  unless  that  power  is  expressly  given  by  the  charter 
or  by  statute.15 

10.  And  a  by-law  declaring  that  the  company  would  not  be 
responsible  for  a  passenger's  baggage,  unless  booked  and  the  car- 
riage paid,  is  bad,  as  inconsistent  with  the  general  law,  allowing 
railway  passengers  to  carry  a  certain  amount  and  kind  of  bag- 
gage.16 

11.  The  members  of  a  joint-stock  company  are  affected  by  all 
binding  statutes  of  the  corporation  from  the  time  of  their  enact- 
ment, without  any  formal  notice  of  their  existence.  And  all  per- 
sons legally  affected  by  such  statutes,  rules,  or  by-laws  of  the 
corporation,  must  conform  to  their  requirements  from  the  time 
they  become  aware  of  their  existence.17 

12.  Regulations  as  to  the  accommodation  of  passengers  must 

12  People  v.  Jillson,  3  Parker,  C.  234. 

13  People  v.  Caryl, -3  Parker,  C.  326. 

14  Calder  Nav.  Co.  v.  Pilling,  14  M.  &  W.  76  ;  s.  c.  3  Railw.  C.  735.  But  it 
is  questionable  whether  this  case  is  maintainable,  in  this  country,  upon  any  such 
grounds. 

15  Matter  of  Long  Island  Railw.,  19  Wend.  37 ;  s.  c.  2  Am.  Railw.  C.  453. 

16  Williams  v.  Great  Western  Railway,  10  Exch.  15  ;  s.  c.  28  Eng.  L.  &  Eq. 
439.  But  it  seems  somewhat  questionable,  whether  the  principle  of  this  decision 
can  ultimately  be  maintained.  It  seems  to  be  no  reasonable  abridgment  of  the 
right  of  a  passenger  to  carry  a  certain  weight  and  kind  of  baggage,  to  require  it 
to  be  booked  and  carriage  paid. 

17  Woodfin  v.  Ins.  Co.,  0  Jones'  Law,  558. 

[*92] 


100  BY-LAWS    AND    STATUTES.  PART  II. 

yield  to  the  rights  of  others  to  be  carried,  and  the  accommodation 
of  passengers  during  the  transit  is  subject  to  such  general  rules 
♦  and  regulations  as  the  company  see  fit  to  make,  provided  they  are 
reasonable,  and  whether  that  be  so  is  to  be  determined  by  the 
jury,  under  suitable  instruction  from  the  Court.  But  these  rules 
and  regulations  must  have  for  their  object  the  accommodation  of 
tin-  passengers  generally,  and  must  be  of  a  permanent  nature,  and 
not  made  for  a  particular  emergency  or  occasion.18 

-  1 1  [\  ,-.  ( ►wen,  5  Mich.  520.  We  are  aware  it  is  the  practice  in  America,  in 
almost  all  modes  of  passenger  transportation,  to  cram  the  carriages  to  the  point 
of  Buffocation  almost,  if  passengers  offer.  But  that  is  never  attempted  or  al- 
lowed, in  England,  or  upon  the  Continent.  Whenever  the  seats  in  a  carriage,  or 
the  accommodations  in  a  boat,  are  all  occupied,  no  more  are  allowed  to  enter  the 
carriage  or  the  boat.  This  sometimes  results  in  putting  a  first-class  passenger 
into  a  second-class  carriage,  and  vice  versa.  But  no  man  in  Europe  would  ever 
be  allowed  to  take  passage  in  a  railway  carriage,  without  having  a  seat.  It 
would  be  deemed  the  height  of  indiscretion,  almost  bordering  on  madness,  to 
attempl  to  transport  passengers  by  railway,  in  a  standing  position.  And  even 
in  omnibuses  no  one  can  enter  after  the  seats  are  filled.  And  in  Paris  a  promi- 
gign,  "  Complet"  is  exposed,  the  moment  the  carriage  is  full. 

And  it  seems  to  us  that  a  passenger-carrier  who  is  supplied  with  sufficient  ac- 
commodations for  all  who  ordinarily  offer,  had  better  be  excused  from  carrying 
any  excess  which  might  occasionally  offer,  than  be  compelled  to  carry  them  at 
the  expense  of  the  discomfort  and  suffering  of  all  the  other  passengers.  We 
think  at  leasi  if  railways  took  this  ground,  upon  the  score  of  safety  merely,  they 
would  not  fail  to  be  sustained  by  the  courts,  unless  the  excited  rush  of  all,  to 
go  by  the  first  chance,  is  to  override  all  other  considerations,  whether  of  safety  or 
convenience.  And  we  trust  that  public  opinion  here  is  more  reasonable  than  to 
make  any  such  demands. 

[*93] 


§27. 


BY-LAWS   REGULATING   STATIONS   AND   GROUNDS. 


101 


SECTION    II. 


By-Laivs  regulating  the  use  of  stations  and  grounds. 


1.  May  exclude  persons  without  business. 

2.  May  regulate  the.  conduct  of  others. 

3.  Superintendent  may  expel  for  violation  of 

rules. 

4.  Probable  cause  null  justify. 

5.  In  civil  suit  must  prove  violation  of  rules. 

6.  Regulation  of  stations  and  traffic  by  means 

of  injunction.     Equality  of  charges. 

7.  Through  trains  will  not  be  required  unless 


reasonably  necessary  for  public  accom- 
modation. 

8.  Mode  of  enforcing  search  warrants  in 

freight  stations. 

9.  The  right  of  railway  companies  to  exclude 

persons  having  no  business,  from  their 
stations. 
10.   Company  bound  to   maintain  platforms 
about  passenger  stations  in  safe  condi- 
tion. 


§27.  1.  Questions  have  sometimes  been  made,  in  regard  to  the 
right  of  railway  companies  to  exclude  persons  from  their  grounds 
who  had  no  business  to  transact  there,  connected  with  the  com- 
pany, *  or  to  establish  regulations  or  by-laws  to  govern  the  conduct 
of  such  persons  as  had  occasion  to  come  there,  and  to  exclude 
others.  But,  upon  the  whole,  there  seems  little  ground  to  ques- 
tion the  right.1 

2.  A  railway  corporation  has  authority  to  make  and  carry  into 
effect  reasonable  regulations  for  the  conduct  of  all  persons  using 
the  railway,  or  resorting  to  its  depots,  without  prescribing  such 
regulations  by  formal  by-laws ;  and  the  superintendent  of  a  rail- 
way station,  appointed  by  the  corporation,  has  the  same  authority, 
by  delegation. 

3.  Such  superintendent  may  exclude  from  the  stations  and 
grounds  persons  who  persist  in  violating  the  reasonable  regulations 
prescribed  for  their  conduct,  and  thereby  annoy  passengers,  or 
interrupt  the  officers  and  servants  of  the  company  in  the  discharge 
of  their  duty.  Thus,  where  the  entrance  of  innkeepers  and  their 
servants  into  a  railway  station  to  solicit  passengers  to  go  to  their 
houses,  produces  such  effect,  they  may  be  excluded  from  coming 
within  the  station  ;  and  if,  after  notice  of  a  regulation  to  that 
effect,  they  attempt  to  violate  it,  and  after  notice  to  leave,  refuse 

1  Barker  v.  Midland  Railw.,  18  C.  B.  46 ;  s.  c.  36  Eng.  L.  &  Eq.  253 :  Com- 
monwealth v.  Power,  7  Met.  596 ;  s.  c.  1  Am.  Railw.  C.  389 ;  Hall  v.  Power, 
12  Met.  482. 

[*94] 


102  BY-LAWS    AND   STATUTES.  PART  II. 

i  bo,  they  may  l>e  forcibly  expelled  by  the  servants  of  the 
.  using  no  unnecessary  force. 
\.   And  where  an  innkeeper  had  been  accustomed  to  annoy  pas- 
in  this  manner,  and  had  been  informed  by  the  superintend- 
itioo  that  he  must  do  so  no  more,  but  still  continued 
.  and  afterwards  obtained  a  ticket  for  a  passage  in  the 
cars,  with   the  //  intention   of  entering  the  cars  as  a  pas- 

ind  went  into  the  station  on  his  way  to  the  cars,  and  the 
irinteudent,  believing  he  had  entered  for  his  usual  purpose, 
ordered  him  to  go  out.  and  he  did  not  exhibit  his  ticket,  nor  give 
notice  of  his  real  intention,  but  pushed  forward  towards  the  cars, 
and  the  superintendent,  and  his  assistants  removed  him  from  the 
station,  using  no  unnecessary  furce,  the  removal  was  held  justifi- 
able.2 and  not  an  indictable  offence.2 

.">.  Hut  the  superintendent  cannot  remove  a  person  from  the 
station  and  grounds  of  the  company,  merely  because  such  person, 
in  the  judgment  of  the  superintendent,  and  without  proof  of  the 
fact,  violated  the  regulations  of  the  company,  or  conducted  himself 
*  offensively  towards  the  superintendent.3     And  it  was  said  if  such 

'  <    .mmonwealth  r.  Power.  7  Met.  596;  Markham  v.  Brown,  8  X.  II.  523. 

3  Hall  r.  Power.   12  s.  c.  1  Am.  Railw.  C.  440.     There  is  an  ap- 

parent discrepancy  in  the  manner  of  stating  the  point  of  the  decision  of  this  case, 
and  that  of  The  Commonwealth  r.  Power.  7  Met.  596,  in  regard  to  defendant 
bein<r  justified,  if  he  acted  in  good  faith,  upon  probable  cause,  which  does  not 
seem  to  be  warranted,  by  any  recognized  distinction,  between  a  civil  suit,  for 
damages,  and  a  public  prosecution  for  assault  and  battery,  but  the  court  evi- 
dently intend  no  distinction  in  the  cases.  The  law  is  well  stated  by  Shaw,  C.  J., 
in  the  former  case,  7  Met.  602:  "  We  are  therefore  of  opinion,  that  upon  the 
evidence  detailed  in  the  judge's  report,  the  jury  should  be  instructed  in  a  manner 
somewhat  as  follows  :  That  if  Power  had  been  placed  in  charge  of  the  depot  by 
the  corporation,  as  superintendent,  he  had  all  the  authority  of  the  corporation, 
both  as  owners  and  occupiers  of  real  estate,  and  also  as  carriers  of  passengers, 
incident  to  the  duty  of  control  and  management :  That  this  power  and  authority 
of  the  corporation  extended  to  the  reasonable  regulation  of  the  conduct  of  all 
persons  u.dng  the  railroad,  or  having  occasion  to  resort  to  the  depots,  for  any 
purpose  :  That  this  power  was  properly  to  be  executed  by  a  superintendent, 
3  his  rules  and  regulations  to  the  circumstances  of  the  particular  depot 
and'  ;nd  that  it  was  not  necessary  that  such  regulations  should  be 

•vs  of  the  corporation  :  That  the  opening  of  depots  and  plat- 
forms lor  the  sale  of  tickets,  for  the  assembling  of  persons  going  to  take  pa^sa^e, 
or  landing  from  the  cars,  amounts  in  law  to  a  license  to  all  persons,  prima  facie, 
to  enter  the  depot,  and  that  such  entry  is  not  a  trespass ;  but  that  it  is  a  license 
conditional,  subject  to  reasonable  and  useful  regulations ;  and,  on  non-compliance 

[•95] 


§  27.  BY-LAWS   REGULATING   STATIONS   AND    GROUNDS.  103 

person  is  removed  for  an  alleged  violation  of  the  regulations  of 
*  the  company,  and  it  finally  is  shown  that  he  did  not  in  fact  vio- 
late any  of  such   regulations,  he   may  recover  damages  of   the 

with  such  regulations,  the  license  is  revocable,  and  may  be  revoked  either  as  to 
an  individual,  or  as  to  a  class  of  individuals,  by  actual  or  constructive  notice  to 
that  effect :  That  if  the  platform,  as  part  of  the  depot,  is  appropriated  to  and 
connected  with  the  entrance  of  passengers  into  the  cars,  and  the  exit  of  passen- 
gers from  the  cars,  and  for  the  accommodation  of  their  baggage,  and  if  the 
soliciting  of  passengers  to  take  lodgings  in  particular  public-houses,  by  the  keep- 
ers of  them  or  their  servants,  is  a  purpose  not  directly  connected  with  the  carriage 
of  passengers  by  the  railroad,  on  their  entrance  into  or  exit  from  cars ;  that  if, 
when  urged  with  earnestness  and  importunity,  it  is  an  annoyance  of  passengers, 
and  interruption  to  their  proper  business  of  taking  or  leaving  their  seats  in  the 
cars,  and  procuring  or  directing  the  disposition  of  their  baggage ;  or  if  the 
presence  of  such  persons,  for  such  a  purpose,  is  a  hindrance  and  interruption  to 
the  officers  and  servants  of  the  corporation,  in  the  performance  of  their  respec- 
tive and  proper  duties  to  the  corporation,  as  passenger-carriers;  then  the  pro- 
hibition of  such  persons  from  entering  upon  the  platform,  is  a  reasonable  and 
proper  regulation,  and  a  person  who,  after  actual  or  constructive  notice  of  such 
regulation,  violates  or  attempts  to  violate  it,  thereby  loses  his  license  to  enter 
the  depot;  that  such  license  as  to  him  may  be  revoked;  and  if,  upon  notice  to 
quit  the  depot,  he  refuses  so  to  do,  he  may  be  removed  therefrom  by  the  super- 
intendent and  the  persons  employed  by  him  ;  and  if  they  use  no  more  forte  than 
is  necessary  for  that  purpose,  such  use  of  force  is  not  an  assault  and  battery,  but 
is  justifiable  :  that  as  to  the  circumstances  of  the  present  case,  if  the  superintend- 
ent had  issued  a  circular,  giving  notice  to  all  innkeepers  and  landlords  that  he  had 
prohibited  them  from  entering  the  depot  to  solicit  persons  to  go  to  their  respec- 
tive houses  as  guests,  and  if  this  notice  came  to  Hall,  and  he  afterwards,  and 
after  special  notice  to  him  personally,  had  attempted  to  violate  this  prohibition, 
and  solicit  passengers  ;  and  if,  upon  the  particular  occasion,  he  gave  no  notice  of 
coming  for  any  other  purpose ;  and  if  the  defendant  Power  met  him  on  his  way 
to  the  platform,  told  him  he  must  not  go  there,  laid  his  hands  on  him,  and  or- 
dered him  to  leave  the  depot,  without  any  inquiry  as  to  the  purposes  of  Hall,  and 
Hall  made  no  reply,  but  pressed  forward  and  attempted  to  reach  the  platform,  in 
spite  of  the  efforts  of  Power;  this  was  strong  prima  facie  evidence  that  he  was 
going  there  with  intent  to  solicit  passengers,  in  violation  of  the  notice  and  revo- 
cation of  license  ;  and  that  if  he  gave  no  notice  of  his  intention  to  enter  the  car 
as  a  passenger,  and  of  his  right  to  do  so ;  and  if  Power  believed  that  his  inten- 
tion was  to  violate  a  subsisting  reasonable  regulation  ;  then  he  and  his  assistants 
were  justified  in  forcibly  removing  him  from  the  depot:  That  if  Hall  gave  no 
notice  of  his  having  a  ticket,  of  his  intention  and  purpose  to  enter  the  cars  as 
a  passenger,  and  of  his  right  to  do  so,  and  that  Power  had  no  notice  of  it,  then 
Hall  could  not  justify  his  conduct,  and  make  Power  a  wrong-doer,  by  proving  the 
possession  of  such  a  ticket,  or  of  his  intent  to  go  in  the  cars  to  Richmond,  as  a 
passenger;  and  that  he  was  to  be  considered  as  standing  on  the  same  footing  as 
if  he  had  not  possessed  such  ticket." 

[*96] 


104  BY-LAWS    AND    STATUTES.  PART  II. 

superintendent  of  the  station  by  whose  order  he  was  removed, 
notwithstanding  such  superintendent  acted  in  good  faith.3  And 
in  such  e  isc  it  is  nol  competent  to  show  that  the  plaintiff  had 
been  guilty  of  former  violations  of  other  regulations  of  the 
company.8 

6.  Under  the  English  statute  of  17  &  18  Vict,  requiring  among 
other  things  that  the  Superior  Courts  of  Westminster  Hall  shall 
enforce  the  duty  of  railway  companies  in  regard  to  their  traffic  in 
goods  and  passenger  transportation,  it  was  held  a  proper  ground 
for  granting  a  rule  to  show  cause  why  an  injunction  should  not 
issue,  that  at  one  of  the  stations  of  the  company,  where  an  impor- 
tant junction  with  other  roads  occurred,  no  covered  place  was 
provided  for  the  accommodation  of  the  passengers.4  But  the 
English  Railway  Traffic  Act  does  not  justify  the  courts  in  requir- 
ing the  companies  to  make  the  same  charges,  or  to  afford  the  same 
facilities  in  regard  to  return  tickets  of  a  particular  class,  on  one 
of  their  branches,  which  they  do  upon  others.4  To  constitute  in- 
equality of  charge,  it  must  be  for  passing  over  the  same  line,  or  the 
same  part  of  the  line.4 

*  7.  To  justify  the  courts  in  interfering  to  require  the  com- 
panies constituting  a  continuous  line  to  run  through  trains,  it 
must  be  shown  that  public  convenience  requires  it,  and  that  it  can 
reasonably  be  done.5  And  they  will  not  interfere  in  such  cases 
where  there  is  another  route  where  through  tickets  may  be  obtained, 
although  somewhat  longer,  no  additional  cost  or  serious  loss  of 
time  being  thereby  incurred,  and  there  being  no  general  complaint 
of  public  inconvenience  on  that  account.5 

8.  A  railway  freight  station  or  warehouse  kept  by  a  railway 
company  for  the  storage  of  goods  transported  by  them,  is  not 
exempt  from  the  process  of  search  warrant  under  the  statute 
against  the  keeping  and  sale  of  spirituous  liquors;  nor  is  it  neces- 
sary that  such  warrant  should  be  executed  during  the  usual  busi- 
ness bonis,  or  that  the  officer  should  consult  the  person  who  has 
charge  of  the  station.6 

9.  The  Supreme  Court  of  Vermont7  decided  that  prima  facie 

'  I  iterham  Railw.  Co.  v.  London  &  Br.  Railw.  Co.,  40  Eng.  L.  &  Eq.  259; 
B.  C.  1   C.  H.   (N.  S.)    110. 

6  Barret  c.  Great  Northern  Railw.,  1  C.  B.  (N.  S.)  423. 
«  An  Iroscoggin  Railw.  Co.  v.  Richards,  41  Me.  233. 

7  Harris  V.  Stevens,  31  Vt.  79;  Gillis  v.  Penn.  Railw.,  59  Penn.  St.  129. 

[*<J7] 


§  27.  BY-LAWS   REGULATING    STATIONS   AND   GROUNDS.  105 

railway  stations  were  open  to  all  persons,  but  the  company  may 
revoke  such  implied  license  to  all,  and  exclude  all  except  such  as 
have  legitimate  business  there  growing  out  of  the  operation  of  the 
road  or  with  the  officers  or  employes  of  the  company.  They  may 
direct  all  others  to  leave  the  station,  and,  on  refusal,  may  remove 
them.  It  is  the  duty  of  such  persons  as  desire  to  remain  in  such 
stations,  for  the  purpose  of  taking  the  cars  or  for  any  other  lawful 
purpose,  to  make  known  the  same  to  the  officers  and  employes  of 
the  company  on  request.  And  if  such  is  the  regulation  of  the 
company,  one  purposing  to  become  a  passenger  may  be  required 
to  purchase  his  ticket  in  order  to  remain  in  the  station.  This 
right  of  entering  the  station  to  take  the  cars  can  only  be  in  con- 
formity with  the  regulations  of  the  company,  and  within  a  reason- 
able time  only  before  the  departure  of  the  trains,  which  will  depend 
upon  the  particular  circumstances  of  each  case.  It  is  not  requisite 
the  person  should  enter  the  station  witli  the  purpose  of  taking  pas- 
sage :  it  is  enough  that  he  entertains  the  purpose  at  the  time  he 
refuses  to  leave,  and  conducts  himself  in  other  respects  in  con- 
formity with  the  regulations  of  the  company. 

10.  As  to  such  persons  as  have  lawful  business  with  the  road 
and  just  occasion  to  come  upon  the  platforms  about  passenger 
stations,  including  passengers  and  those  who  come  to  see  them  off 
or  to  receive  them,  as  well  as  the  employes  of  the  company,  there 
is  a  duty  resting  upon  it,  to  maintain  the  structure  in  such 
strength  as  to  support  all  who  may  thus  have  occasion  to  go 
upon  it.8 

8  Gillis  v.  Perm.  Railw.,  59  Perm.  St.  129. 

[*97] 


BY-LAWS    AND    STATUTES. 


PART  II. 


♦SECTION    III. 


By-Laws  or  Rules  as  to  Passengers. 


1.  By-laws  as  statutes. 

2.  .1  t,  or  regulations. 

\iring  larger  farts  for  shorter  distances. 
■  tengt  rs  to  go  through  in  same 

train. 
n.  5.  Discussion  of  cases  in  point. 

I  ■■  ;•  by  company's  servants. 

6.   How  far  company  responsible. 

"ini/  liable  for  act  of  servant. 
'aw  must  be  published. 
<J.  Excluding  merchandise  from   passenger- 
trains. 


10.  Discrimination   between  fares  paid  in 

cars  and  at  stations. 

11.  Liability  for  excess  of  force. 

12.  Officer  de  facto  may  enforce  rules  of 

company. 

13.  Company  cannot  enforce  rule  against  pas- 

senger,  when  in  fault  themselves. 

14.  The  consent  of  the  company  to  tariff  of 

fares  how  presumed. 
1").  Discrimination  on  the  ground  of  color. 
1G.  Regulations  and  duties  of  street  railways. 


§  28.  1.  A  distinction  is  sometimes  made  between  by-laws,  and 
orders  or  regulations,  the  former  being  supposed,  in  strictness 
of  language,  to  have  reference  exclusively  to  the  government  of 
their  own  members,  and  of  their  corporate  officers.1  And  it  is 
true  that  such  other  ordinances,  as  any  owner  of  the  buildings 
and  grounds,  about  a  railway  station,  employed  in  carrying  pas- 
sengers, might  find  it  convenient  to  establish,  are  certainly  not 
what  is  ordinarily  understood  by  the  by-laws,  or  statutes,  of  the 
corporation. 

2.  But  in  the  English  cases  they  are  both  called  by-laws.2  Thus 
a  by-law,  that  each  passenger,  on  booking  his  place,  should  be  fur- 
nished with  a  ticket,  to  be  delivered  up  before  leaving  the  com- 
pany's premises,  and  that  each  passenger,  not  producing  or 
delivering  up  his  ticket,  should  be  required  to  pay  fare  from  the 
place  whence  the  train  originally  started,  was  held  not  to  be  a 
by-law  imposing  a  penalty.2     And  that  therefore  the  non-produc- 

1   Shaw,  C.  J.,  in  Commonwealth  v.  Power,  7  Met.  596,  601. 

5  ChUton  v.  The  London  &  Croydon  Railw.,  16  M.  &  W.  212;  s.  c.  5  Railw. 
C.  4.  It  would  seem  from  the  opinion  of  Parke,  B.,  that  the  by-law  was  regarded 
as  valid,  but  as  imperfect,  in  not  subjecting  the  passenger  to  a  penalty  in  terms. 
The  other  judges  doubted  whether  the  act  was  intended  to  give  the  company 
power  to  imprison  the  plaintiff,  or  any  one,  except  for  some  offence  against  the 
act.  But  all  seemed  to  concur  in  the  opinion  that  the  passenger  was  bound  to 
comply  with  the  regulation,  or  submit  to  the  alternative.  State  v.  Overton,  4 
Zab.  435  ;   Halt.  &  Ohio  Railw.  v.  Blocher,  27  Md.  277. 

[•98] 


§  28.  BY-LAWS   OR  RULES    AS   TO   PASSENGERS.  107 

tion  of  the  ticket,  with  which  a  passenger  had  been  furnished,  and 
his  refusal  to  pay  fare  from  the  place  whence  the  train  started, 
*  did  not  justify  his  arrest,  but  only  rendered  him  liable  to  pay  fare 
from  the  place  whence  the  train  started. 

3.  But  in  an  English  case,3  where  the  company  had  made  a 
legal  by-law,  that  any  passenger,  who  should  enter  a  carriage  of 
the  company,  without  first  having  paid  his  fare,  should  be  sub- 
jected to  a  penalty  not  exceeding  40s.,  a  passenger,  desiring  to  go 
to  Diss  station,  where  the  fare  was  7s.,  procured  a  ticket  for  Nor- 
wich, a  more  distant  station  on  the  line,  but  where  the  fare  was 
but  5s.,  in  consequence  of  competition,  and  entered  the  carriage 
accordingly,  and  at  Diss  offered  to  surrender  his  ticket,  but  refused 
to  pay  the  difference  in  fare ;  he  was  prosecuted  for  the  penalty, 
and  a  majority  of  the  Court  of  Queen's  Bench  held  he  was  not 
liable,  on  the  ground  that  he  had  paid  his  fare  before  entering  the 
carriage.  Lord  Campbell  said,  "  I  cautiously  abstain  from  express- 
ing any  opinion,  as  to  the  power  of  the  company  to  make  special 
regulations,  or  by-laws,  so  as  to  enforce  larger  fares,  for  shorter 
distances."  —  "  Had  not  Frere,  within  the  meaning  of  the  by-law, 
paid  his  fare,  before  he  entered  the  carriage  ?  I  think  he  had. 
He  had  paid  the  full  fare  from  Colchester  to  Norwich,  all  that  was 
required  of  him ;  and  he  cannot  be  said  to  be  a  person  who  had 
entered  the  company's  carriage  without  payment  of  fare."  4 

4.  It  has  been  held  that  a  regulation  requiring  passengers  to  go 
through,  in  the  same  train,  and  that  if  one  do  not,  requiring  fare 
for  the  remainder  of  the  route  is  valid.5     *  And  where  the  ticket 

3  Reg.  v.  Frere,  4  El.  &  Bl.  598 ;  s.  c.  29  Eng.  L.  &  Eq.  143. 

4  But  the  argument  of  Lord  Campbell  on  this  point  does  not  seem  altogether 
satisfactory.  Whether  the  passenger  had  paid  his  fare  depended  upon  the 
validity  of  the  by-law,  and  could  not  be  fairly  determined  upon  any  other  basis, 
it  would  seem.  Frere  had  paid  fare  to  Norwich,  but  had  not  paid  fare  to  Diss, 
unless  the  by-law  was  void ;  so  that  the  validity  of  the  by-law  did  seem  to  be 
necessarily  involved  in  the  decision.  And  the  decision  of  the  court,  although 
not  professing  to  do  so,  did  virtually  disregard  it.  For  if  the  by-law  was  valid, 
Frere  had  no  more  paid  his  fare  than  if  he  had  taken  a  ticket  to  a  station  short 
of  his  destination.  And  if  the  by-law  meant  any  thing  sensible,  it  could  only 
mean,  having  paid  fare  to  his  intended  destination.  Any  other  construction  looks 
like  an  evasion. 

5  Cheney  v.  Boston  &  Maine  Railw.,  11  Met.  121 ;  see  2  Redf.  Am.  Railw.  Cases, 
447.  In  this  case  the  passenger,  when  he  bought  his  ticket,  did  not  know  of  the 
regulation,  but  was  informed  of  it  in  the  cars,  and  his  money  offered  to  be  refunded, 
deducting  what  he  had  travelled;  but  he  refused  to  make  the  arrangement,  and 

[*99,  100] 


108  BY-LAWS    AND    STATUTES.  PART  II. 

waa  marked  "  good  only  two  days  after  date,"  it  was  held  to  he 
evidence  of  a  contract  to  that  effect  between  *  the  railway  and  the 

demanded  his  ticket,  in  exchange  for  the  check  which  had  been  given  him, 
marked  "good  for  this  trip  only."  He  stopped  by  the  way,  and  went  on  the 
Mine  day  in  the  next  train  ;  and  when  he  presented  his  check,  it  was  refused, 
and  tare  demanded,  which  lie  was  obliged  to  pay.  The  court  held  the  passenger 
coul, I  not  recover  the  money  of  the  company,  and  that  it  made  no  difference 
whether  the  plaintiff  was  aware  of  the  regulation  or  not,  at  tin*  time  he  pur- 
chased bis  ticket.  He  was  hound  to  inform  himself,  or  accept  of  the  ticket,  for 
what  it  entitled  him  to  demand,  by  the  rules  of  the  company. 

i  -  Bubjecl  is  a  »ood  deal  discussed  in  a  case  in  New  Jersey,  and  a 
similar  result  arrived  at.  It  is  there  said  that  the  company  may  discriminate 
between  way  and  through  fare,  unless  prohibited  by  law.  State  v.  Overton, 
1  Zab.  184.  The  same  rule  applies  to  excursion  tickets  sold  and  marked  "good 
fur  cue  passage  on  this  day  only.'1  It  cannot  be,  used  on  any  other  day,  and  if 
tie-  holder  refuse  to  pay  his  fare,  he  may  be  put  off  the  train,  and  after  being  put 
off,  he  cannot  claim  to  return  by  producing  a  regular  ticket.  State  v.  Campbell, 
.".  Vroom,  309.  In  Pier  v.  Finel,  24  Barb,  olf,  where  a  person  was  put  off  the  cars 
of  a  railway  company  for  refusal  to  pay  fare,  having,  and  offering  to  the  con- 
ductor, a  ticket  of  the  company,  dated  a  few  days  before,  and  marked  "good 
for  this  trip  only,"  but  unmutilated,  it  being  the  practice  of  the  conductors  upon 
that  road,  where  a  ticket  had  been  used,  to  give  it  a  mark;  it  was  held  that  the 
ticket  was  prima  facie  evidence  that  the  holder  had  paid  the  regular  fare  for  it, 
and  of  his  right  to  be  transported,  at  some  time,  between  the  places  specified, 
on  some  passenger  train  :  and  if  unmutilated,  the  presumption  was,  that  it  had 
never  been  used,  and  that  it  imposed  upon  the  company  the  duty  to  so  transport 
the  holder.  It  was  also  held  that  the  indorsement,  "good  for  this  trip  only," 
had  reference  to  no  particular  trip,  or  any  particular  time,  but  only  to  some,  one 
continuous  trip.  That  the  passenger  might  demand  a  passage,  as  well  on  a  sub- 
Bequent  day  as  the  one  upon  which  the  ticket  bore  date,  and  was  issued. 
This  decision  seems  to  us  not  precisely  to  meet  the  whole  question  involved 
in  the  case  ;  that  is,  whether  such  a  regulation  as  was  claimed  to  be  evidenced 
by  the  ticket  and  the  indorsement,  was  a  valid  and  binding  regulation.  There 
can  he  no  doubt  such  a  regulation  exists,  upon  many  of  the  roads,  in  this  coun- 
try, ami  that  such  a  ticket  is  understood,  by  the  community  generally,  as  enti- 
tling the  holder  only  to  a  passage  on  that  day,  at  most,  if  not  in  the  very  next 
train.  It  seems  to  be  finally  settled  that  no  passenger  who  accepts  a  ticket,  or 
cluck,  marked  "good  for  this  day  and  train  only,"  has  any  right  to  leave  the 
train,  at  a  way  station,  and  demand  a  passage  on  any  after  train,  and  if  he  do  so, 
and  refuse  to  pay  the  fare  for  the  remainder  of  the  route,  the  conductor  may  law- 
fully put  him  off  the  train.  See  McClure  v.  Phil.  Will.  &  Bait.  Railw.,  3-1  Md.  532. 
The  ticket  master  at  a  way  station  has  no  authority  to  extend  a  conductor's  check, 
lb.  But  the  conductor  may  give  a  passenger  leave  to  stop  by  the  way,  while 
riding  on  Buch  a  ticket,  and  by  indorsing  his  check  make  it  good  for  an  after 
train.  And  where  tickets  for  extended  routes  are  issued  in  coupons,  it  is  com- 
monly understood  that  the  passenger  may  stop  at  the  end  of  any  of  the  separate 
coupons,  and  complete  the  passage  at  any  after  time  within  reasonable  limits. 

[*101] 


§  28.  BY-LAWS    OR    RULES  AS    TO    PASSENGERS.  109 

purchaser,  and  to  be  of  no  force  after  the  expiration  of  the  term.6 
And  where  the  regulations  of  the  *  company  allow  the  conductors, 

And  the  same  rule  applies  to  season  tickets,  which  the  holder  is  by  their 
terms  required  to  present,  when  demanded.  If  the  holder  fail  to  present  the 
ticket  when  demanded,  he  must  pay  fare  or  consent  to  be  put  oil'  the  train. 
Downs  v.  N.  Y.  &  N.  H.  Railw.,  36  Conn.  287.  And  it  was  here  held  to  be  no 
valid  excuse  for  not  presenting  the  ticket,  that  the  holder  had  accidentally  left  it 
at  home  and  therefore  had  it  not  in  his  power  to  present  it.  In  the  case  of  Die- 
trich v.  Petin.  Railw.,  in  the  Supreme  Court  of  Pennsylvania,  29  Phila.  Reports, 
212,  it  was  decided  that  railway  companies  may  make  reasonable  rules  and 
regulations  in  regard  to  passenger  transportation,  and  they  are  binding  upon 
passengers  whether  known  to  them  or  not,  it  being  their  duty  to  inquire  and 
learn  them;  and  therefore  that  a  drover's  ticket,  allowing  the  holder  to  ride 
between  the  points  named  in  a  continuous  passage,  without  stopping  at  interme- 
diate places,  must  be  so  used  or  it  is  forfeited.  This  view  seems  exceedingly 
reasonable. 

So,  also,  if  the  passenger  refuse  to  surrender  his  ticket  in  exchange  for  the 
conductor's  check,  according  to  the  regulations  of  the  company,  and  at  any 
point  of  the  route  leave  the  cars,  without  surrendering  his  ticket,  he  is  liable 
to  pay  fare  for  the  distance  he  rode,  or  upon  his  refusal  to  surrender  his  ticket, 
or  to  pay  fare,  the  conductor  is  justified  in  expelling  him  from  the  cars. 
Northern  Railway  v.  Page,  22  Barb.  130.  But  passengers  are  not  obliged 
to  surrender  their  tickets  without  having  a  check  in  exchange  by  which  they 
may  be  able  to  show  that  they  have  paid  fare.  State  v.  Thompson,  20  N.  H. 
250.  In  Hibbard  v.  New  York  &  Erie  Railway,  15  N.  Y.  455,  it  was  held, 
that  a  regulation,  made  by  a  railway  company,  requiring  passengers  to  exhibit 
their  tickets  whenever  requested  by  the  conductor,  and  directing  those  who 
refused  to  do  so  to  be  expelled  from  the  cars,  was  reasonable  and  valid,  and 
that  passengers  were  bound  to  conform  to  it,  and  forfeited  all  right  to  be  carried 
further  by  refusal  to  do  so.  And  it  was  further  held,  that  the  binding  force  of 
such  a  regulation  was  matter  of  law  to  be  decided  by  the  court,  and  that  under 
such  a  regulation,  where  a  passenger  refused,  on  request,  to  exhibit  his  ticket,  a 
second  time,  the  train  having  in  the  mean  time  passed  a  station,  it  was  not  enough 
for  the  court  to  charge  the  jury  that  the  passenger  was  bound  to  exhibit  his  ticket, 
when  reasonably  requested,  but  that  if  the  conductor  knew  he  had  paid  his  fare 
he  had  no  right  to  expel  him  from  the  cars.  It  is  intimated  in  this  case,  that  one 
who  has  thus  forfeited 'his  right,  cannot  regain  it  by  exhibiting  his  ticket  after  the 
train  is  stopped  for  the  purpose  of  putting  him  off.     And  also,  that  the  company 


6  Boston  &  Lowell  Railway  Co.  v.  Proctor,  1  Allen,  267;  Shedd  v.  Troy  & 
Boston  Railw.,  40  Vt.  88.  And  the  same  doctrine  is  maintained  in  Johnson  v. 
Concord  Railw.,  46  N.  H.  213.  And  it  was  here  held  that  ignorance  of  the  by- 
laws or  regulations  of  the  company  will  make  no  difference.  Passengers  must 
inquire  if  they  desire  to  learn  the  regulations  of  the  company.  And  the  con- 
ductors having  waived  them  is  no  evidence  of  their  repeal  unless  known  to  the 
governing  officers  of  the  company. 

[*102] 


HO  BY-LAWS    AND    STATUTES.  PART  II. 

liv  making  a  memorandum  on  a  ticket,  to  permit  the  passenger 
to  Btay  over  and  pass  upon  another  train,  and  one  stayed  over 
without  procuring  such  memorandum,  it  was  held  that  another 
conductor,  to  whom  he  presented  his  ticket  in  attempting  to  pass 
at  a  Bubsequenl  time,  was  justified  in  demanding  fare,  and  putting 
the  passenger  off  the  train  niton  his  refusal  to  pay.7 

5,  In  one  ease,8  where  the  plaintiff,  upon  the  information  of  the 
Btation-clerk  that  he  might  return  at  a  given  hour  upon  an  excur- 
sion ticket,  purchased  such  ticket  and  took  the  train  named  hy 
such  clerk  to  return,  hut  the  train  did  not  pass  through  ;  and  at 
the  place  where  it  stopped  the  station-clerk  demanded  2s.  6d. 
more,  saying  he  should  not  have  taken  that  train,  payment  being 
refused,  the  superintendent  took  the  plaintiff  into  custody:  The 
plaintiff's  attorney  having  written  the  secretary  of  the  company, 
asking  compensation,  he  requested  to  be  furnished  with  the  date 
of  the  transaction,  and  promised  to  make  inquiries.  He  also 
Btated  verbally  that  it  was  an  awkward  business,  and  the  blame 
would  fall  upon  the  station-clerk  who  gave  the  plaintiff  the  false 
information,  and  offered  to  return  the  2s.  6d.  It  was  held  that, 
as  there  was  no  evidence  of  the  authority  of  the  defendants  to 
make  the  arrest,  and  none  that  they  had  expressly  or  impliedly 
authorized  or  ratified  it,  it  must  be  regarded  as  the  mere  tortious 
act  of  the  servant,  for  which  he  alone  was  responsible. 

would  not  be  liable  if  the  conductor  put  a  wrong  construction  upon  the  regula- 
tion, and  thus  wrongfully  expelled  a  passenger,  or  if  he  were  guilty  of  an  excess 
of  force.  And  where  a  person  purchases  a  railway  ticket  and  starts  upon  the 
road,  ;i7id  afterwards  gives  up  his  ticket  to  the  conductor,  he  cannot,  at  an  inter- 
mediate  Btation,  by  virtue  of  the  subsisting  contract,  leave  his  seat  in  that  train, 
and  subsequently  claim  a  seat  in  another  train.  Cleveland,  &c.  Railw.  v.  Bar- 
tram,  11  Ohio  (N.  S.),  457. 

7  Beebe  v.  Ayres,  28  Barb.  275. 
l:  ie  V.  Birkei  head,  Lancashire,  and  Cheshire  Junction  Railw.,  7  Exch.  36; 
I..  vY  Eq.  546  ;  8.  c.  6  Railw.  C.  795.     And  it  has  been  held  that  a  steam- 
boat  proprietor  might  exclude  one  from   his  boat,  while  employed  in   carrying 
passengers,  if  Buch  person  was  the  agent  of  a  rival  line  of  stages  to  that  which, 
by  contract  with  the  proprietor,  carried  in  connection  with  his  boats,  the  plaintift's 
t  being,  at  the  time,  to  solicit  passengers  to  go  by  the  rival  line  of  stages; 
and  tli--  jury  having  found  that  the  contract  was  bona  fide  and  reasonable,  and  not 
enti  red  into  for  the  purpose  of  an  oppressive  monopoly,  and  that  the  regulation 
excluding   plaintiff  was   necessary   in   order  to   carry  the   contract   into   effect. 
Jencks  o.  <  oleman,  2  Sumner,  221.     But  a  contract  not  to  carry  passengers 
ing  by  a  particular  line  will  not  excuse  the  carrier  from  carrying  such  pas- 
senger.    Bennet  v.  Dutton,  10  N.  H.  481. 
[*102] 


§  28.  BY-LAWS   OR  RULES    AS   TO   PASSENGERS.  Ill 

6.  And  in  a  somewhat  similar  case,9  in  the  Exchequer  Chamber, 
*  where  the  plaintiff  below  had  been  taken  into  custody  by  a  rail- 
way inspector  of  the  defendants,  charged  with  having  no  ticket, 
refusing  to  pay  fare,  intoxication,  and  assaulting  the  inspector ;  at 
the  hearing  before  the  magistrate,  the  solicitor  of  the  company 
attended  to  conduct  the  proceedings ;  and  it  was  held  that  such 
attendance  was  no  ratification  by  the  company,  it  not  appearing 
that  the  facts  were  known  to  the  company.  These  cases  afford 
more  latitude  for  corporations  to  escape  from  liability  for  the  acts 
of  their  agents  and  servants,  while  employed  in  the  prosecution  of 
their  business,  than  is  commonly  allowed  in  this  country.10 

7.  There  are  many  cases  in  this  country  where  it  has  been  held 
that  trespass  will  not  lie  against  a  corporation  for  the  act  of  their 
agents  ; u  but  this  is  not  the  prevailing  rule  here,  where  the  servant 
acts  within  the  apparent  scope  of  his  authority,  and  where  his  acts 
would  bind  the  principal,  being  a  natural  person. 

8.  An  English  railway  company  12  having  power  by  statute  to 
make  by-laws  which  were  to  be  painted  upon  a  board  and  hung 
up  at  the  stations,  and  to  be  binding  upon  all  parties,  made, 
among  others,  a  by-law  that  "  first-class  passengers  shall  be 
allowed  one  hundred  and  twelve  pounds,  and  second-class  passen- 
gers fifty-six  pounds  luggage  each,  and  that  the  company  will  not 

9  The  Eastern  Counties  Railway  v.  Broom,  6  Exch.  314 ;  2  Eng.  L.  &  Eq. 
406 ;  s.  c.  6  Railw.  C.  743. 

10  Post,  §  225  and  notes.  See,  also,  post,  §§  169,  182.  And  in  Coppin  v. 
Braithwaite,  8  Jurist,  875,  it  is  said  to  have  been  ruled  by  Rolfe,  B.,  at  Nisi 
Prius,  that  a  carrier  having  received  a  pickpocket  as  a  passenger  on  board  his 
vessel,  and  taken  his  fare,  he  cannot  put  him  on  shore  at  any  intermediate  place, 
so  long  as  he  is  guilty  of  no  impropriety. 

11  Philadelphia  G.  &  N.  Railw.  Co.  v.  Wilt,  4  Wharton,  143 ;  s.  c.  2  Am. 
Railw.  C.  254;  Orr  v.  Bank  of  U.  States,  1  Ohio,  36 ;  Foote  v.  City  of  Cincin- 
nati, 9  Ohio,  31.  Per  Gomstock  and  Brown,  JJ.,  in  Hibbard  v.  N.  Y.  &  Erie 
Railw.  Co.,  15  N.  Y.  455.  The  company  is  responsible  for  the  act  of  their 
conductors  for  forcibly  ejecting  the  plaintiff  from  the  cars  on  the  ground  that  he 
was  drunk,  which  was  not  true.  Higgins  v.  Watervliet,  &c.  Railw.  Co.,  46  N.  Y.  23. 

12  Great  Western  R.  v.  Goodman,  11  Eng.  L.  &  Eq.  546.  In  Edwards  v. 
London  &  N.  W.  Railw.  Co.,  L.  R.  5  C.  P.  445,  it  was  held,  that  the  head 
porter,  having  charge  of  the  station  in  the  absence  of  the  station  master,  has  no 
implied  authority  to  give  in  charge  to  a  peace  officer,  one  whom  he  suspects  of 
stealing  the  company's  property,  and  if  he  give  in  charge  one  who  is  innocent 
the  company  will  not  be  responsible.  As  to  the  authority  of  special  constables, 
in  the  employ  of  railway  companies,  in  making  arrests  and  what  will  amount  to 
probable  cause,  see  Walker  v.  South  Eastern  Railw.  Co.,  L.  R.  5  C.  P.  640. 

[*103] 


112  BY-LAWS    AND   STATUTES.  PART  II. 

be  responsible  for  the  care  of  the  same  unless  booked  and  paid  for 
accordingly."  It  did  not  appear  that  the  plaintiff  knew  of  the  by- 
law, or  that  it  had  been  posted  up  as  required.  The  plaintiff 
became  a  passenger,  and  gave  his  luggage  to  the  servants  of  the 
company,  and  it  had  been  stolen.  It  was  held  that  the  company 
were  liable,  unless  they  showed  the  by-law  hung  up  at  the  stations, 
as  required  by  the  statute,  or  else  brought  it  home  to  the  knowl- 
edge of  the  plaintiff. 

9.  A  by-law  excluding  merchandise  from  the  passenger-trains, 
and  confining  its  transportation  to  the  freight-trains,  was  held 
*  reasonable.  The  company  are  not  bound  to  carry  a  passenger 
dailv  upon  his  paying  fare,  when  his  trunk  or  trunks  contain  mer- 
chandise, money,  and  other  valuable  matter  known  as  "  express 
matter."  13 

10.  In  a  case14  in  Connecticut,  it  was  held  by  a  divided  court, 
that  where  a  railway  company  established  and  gave  notice  of  a 
discrimination  of  five  cents  between  fares  paid  in  the  cars  and  at 
the  stations,  the  regulation  was  valid,  and  that  where  a  passenger 
refused  to  pay  the  additional  five  cents  in  the  cars,  the  conductor 

13  Merrihew  v.  Milwaukie  &  Mississippi  R.,  5  Am.  Law  Reg.  364. 

11  (linker  v.  New  London,  Willimantic  &  Palmer  Railw.,  24  Conn.  249. 
The  court  were  so  nearly  equally  divided  in  the  decision  of  this  case,  that  it 
cannot  be  regarded  as  much  authority,  in  itself.  The  leading  propositions  in  the 
text  were  maintained,  by  the  Chief  Justice  and  one  other  judge,  and  dissented 
from  by  two  other  judges. 

The  only  point  of  doubt  seems  to  be  the  duty  of  the  company,  in  making  such 
discrimination,  to  give  reasonable  opportunity  to  passengers  to  obtain  tickets,  at 
the  lowest  rate  of  fare,  which  seems  just  and  reasonable,  and  in  accordance,  we 
believe,  with  the  generally  received  opinion  upon  the  subject,  and  the  one  we 
should  have  been  inclined  to  adopt.  In  Hilliard  v.  Goold,  34  N.  II.  230,  it 
was  held,  that  a  uniform  discrimination  between  fares  paid  in  the  cars,  and  at 
the  stations,  not  exceeding  five  cents,  was  reasonable  and  legal,  and  a  passenger 
who  had  not  procured  a  ticket,  and  refused  to  pay  the  additional  five  cents  de- 
manded of  him,  for  fare  paid  in  the  cars,  was  liable  to  be  expelled.  Chicago, 
Burlington,  &  Quincy  Railw.  v.  Larks,  18  Illinois,  460.  And  it  is  here  held  that 
where  the  passenger  only  pays  from  station  to  station,  the  additional  five  cents 
may  be  required  at  each  payment. 

The  general  proposition  of  the  reasonableness  of  a  discrimination  between 
fares  paid  in  the  cars,  and  at  the  stations,  is  maintained  in  State  v.  Goold,  53 
Me.  279.  And  the  passenger  is  bound  by  such  by-law,  whether  he  knew  of  it 
or  not.  lb.:  Bee  also  Chicago  &  Alton  Railw.  v.  Roberts,  40  111.  503 ;  Illinois 
Central  Railw.  v.  Sutton,  42  id.  438;  Chicago  &  N.  W.  Railw.  v.  Peacock,  48 
111.  253;  post,  I  124,  pi.  13. 

[*104] 


§  28.  "by-laws  as  to  passengers.  113 

might  lawfully  put  him  out  of  the  cars,  using  no  unnecessary  force. 
Upon  the  trial  of  an  action  for  such  expulsion,  it  was  held,  that 
the  plaintiff  was  not  entitled  to  recover  upon  proof,  that  he  went 
to  the  ticket-office  of  the  company  a  reasonable  time  before  the 
train  left,  to  procure  a  ticket ;  that  the  office  was  closed,  and  so 
remained  till  the  train  departed,  and  that  he  so  informed  the  con- 
ductor, before  his  expulsion  from  the  cars. 

The  following  propositions  are  maintained  in  the  opinion  of  the 
court :  — 

1.  That  the  defendants,  as  common  carriers,  were  under  no 
legal  obligation  to  furnish  tickets,  or  to  carry  passengers  for  less 
than  the  sum  demanded,  if  the  fare  was  paid  in  the  cars. 

*  2.  That  the  plaintiff's  claim  rested  solely  upon  the  assumption, 
that  the  defendants  had  undertaken  to  carry  for  the  less  sum,  on 
certain  conditions,  which  they  had  themselves  defeated. 

3.  That  the  regulation  did  not  constitute  a  contract,  but  a  mere 
proposal,  which  they  might  suspend,  or  withdraw  at  any  time. 

4.  That  such  proposal  was  withdrawn  by  closing  the  defendants' 
office,  and  the  retirement  of  their  agent  therefrom. 

5.  The  proposition  being  withdrawn,  the  parties  were  in  the 
same  condition  as  before  it  was  made;  the  defendants  continuing 
common  carriers  were  bound  to  carry  the  plaintiff  for  the  usual 
fare  paid  in  the  cars  and  not  otherwise. 

6.  That  the  plaintiff,  refusing  to  pay  such  fare,  was  properly 
removed  from  the  cars. 

It  was  further  held  by  all  the  judges  that  if  the  plaintiff  was 
wrongfully  removed  from  the  cars,  he  might  lawfully  re-enter  them, 
and  if  in  attempting  to  do  so  he  received  the  injury  complained  of, 
he  was  entitled  to  recover,  unless  he  was  himself  guilty  of  some 
want  of  care,  which  produced,  or  essentially  contributed  to  produce, 
the  injury. 

But  if  the  expulsion  was  lawful,  or  if  the  plaintiff  was  guilty  of 
want  of  care  as  stated,  he  could  not  recover. 

The  majority  of  the  court  also  held,  that  if  any  of  the  defendants' 
employes  which  the  conductor  called  to  his  aid,  in  putting  and 
keeping  the  plaintiff  off  the  cars,  intentionally  kicked  the  plaintiff 
in  his  face,  without  the  knowledge  or  direction  of  the  conductor, 
the  defendants  are  not  liable  for  the  act,  in  trespass.  But  the  more 
reasonable  view  in  regard  to  the  mode  of  enforcing  a  discrimination 
between  fares  paid  in  the  cars  and  at  the  stations  is,  that  such  a 
VOL.  i.  8  [*105] 


114  BY-LAWS   AND    STATUTES.  PART  II. 

regulation,  however  proper  in  itself,  cannot  legally  be  enforced  by 
the  company  unless  they  have  afforded  every  proper  and  reasona- 
ble facility  to  the  passenger  for  procuring  his  ticket  at  the  sta- 
tion.K' 

•11.  There  is  no  question,  upon  general  principles,  in  an  action 
or  indictment,  against  the  conductor  of  a  railway  train,  for  unlaw- 
fully expelling  a  passenger,  where  the  evidence  shows  a  right  to 
make  the  expulsion,  that  the  conductor  may  nevertheless  become 
liable  for  the  manner  of  doing  it.  This  is  a  question  to  be  deter- 
mined by  the  jury,  and  cannot  ordinarily  be  decided  by  the  court, 
as  matter  of  law.  If  there  be  an  excess  of  force,  or  it  be  applied 
in  an  unreasonable  and  improper  manner,  the  conductor  is  liable 
for  such  excess,  to  respond  in  damages  to  the  party,  and  also  to 
public  prosecution,  for  a  breach  of  the  peace.16 

12.  The  authority  of  the  conductor  of  a  railway  train,  or  of  any 
other  servant  of  the  company,  to  enforce  their  regulations,  does 

15  St.  Louis  &  C.  Railw.  v.  Dalby,  19  111.  353;  Chicago,  B.  &  O.  Railw. 
r.  Parks,  L8  111.  160.  And  in  a  late  case,  St.  Louis,  Alton,  &  Terre  Haute 
Railroad  r.  South,  13  III.  L76,  it  was  decided  that  the  foregoing  cases  are 
qoI  to  be  construed,  as  requiring  railway  companies  to  keep  open  their  ticket 
offices,  for  the  sale  of  tickets  to  passengers  beyond  the  time  fixed  by  their  estab- 
lished  time-tables  for  the  departure  of  a  train;  but  such  companies  are  required 
in  ke<  p  open  their  offic<  s  for  the  sale  of  such  tickets  as  passengers  are  required 
bem  to  procure,  for  a  reasonable  time  before  the  time  so  fixed  for  fhe 
departure  of  such  tram,  and  not  up  to  the  time  of  its  actual  departure.  They 
are  required  to  furnish  a  convenient  and  accessible  place  for  the  sale  of  passenger 
ticket-,  am!  afford  the  public  a  reasonable  opportunity  to  purchase  them,  and 
parties  who  do  not  avail  themselves  of  the  opportunity  must  submit  to  pay  the 
extra  fare  required  by  the  general  regulations  of  the  company,  or  on  refusal,  to 
be  expelled  from  the  cars.  It  was  also  held  in  this  case,  that  the  right  of  railway 
companies  to  discriminate  between  fares  paid  in  the  cars,  and  at  the  stations,  was 
dependent  upon  the  fact  that  a  reasonable  opportunity  had  been  afforded  for  pro- 
curing  tickets  at  the  lower  rate.  These  doctrines  seem  to  us  reasonable  and 
and  we  -hould  be  surprised  to  have  them  fail  of  general  acceptance  by  the 
ts,  The  same  rule  is  maintained  in  Du  Laurans  v.  Pacific  Railw.,  15  Minn. 
19.  And  it  was  here  said  that  what  is  giving  passengers  a  reasonable  opportu- 
nity to  procure  tickets  before  entering  the  cars  must  be  left  to  the  jury. 

'  Milliard  r.  Could,  34  X.  H.  230;  State  v.  Ross,  2  Dutcher,  224.  In  this 
lasl  case  the  principal  evidence  of  excess  was,  that  the  conductor  kicked  a  pas- 
si  uger  who,  in  a  Male  of  intoxication,  persisted  in  attempting  to  get  upon  the 
train,  and  the  court  held  the  conviction  proper.  So,  too,  where  the  conductor 
put  one  off  the  train  while  in  motion,  whereby  he  lost  a  leg,  he  having  jumped 
upon  the  cars  to  steal  a  ride,  the  act  of  the  conductor  was  held  to  bind  the  com- 
pany.    Kline  v.  Central  Pacific  Railw.,  37  Cal.  400. 

[*106] 


§  28.  BY-LAWS   AS   TO   PASSENGERS.  115 

not  depend  upon  the  formal  mode  of  his  appointment,  but  upon 
the  fact  of  his  being  employed  at  the  time  in  the  particular  office.16 

13.  In  an  English  case,17  where  the  railway  company  had 
established  a  by-law  requiring  all  passengers  to  purchase  tickets 
before  entering  the  cars,  and  to  show  the  tickets  when  required  so 
to  do,  and  to  deliver  them  up  on  request,  before  leaving  the  com- 
pany's premises,  and  the  plaintiff  took  tickets  for  himself  and  three 
boys  and  three  horses,  by  a  certain  train,  which  was  afterwards 
divided  by  the  company's  servants  into  two  parts,  one  being  com- 
posed of  passenger  carriages,  and  the  other  of  horse  boxes;  and 
the  plaintiff  retained  all  the  tickets  and  travelled  by  the  first-men- 
tioned portion  of  the  train,  so  that  the  boys,  who  were  left  to  go  in 
the  other  portion  of  the  train,  were  unable  to  produce  their  tickets 
when  requested  and  were  accordingly  excluded  by  the  company's 
servants  from  entering  the  horse  boxes ;  it  was  held  a  breach  of 
contract  by  the  company,  for  which  they  were  responsible. 

14.  A  *  tariff  of  fares  or  freight  must  have  the  sanction  of  the 
corporation  to  become  of  binding  obligation.  But  if  established 
by  the  president  and  the  business  of  the  company  transacted  with 
reference  to  them,  without  objection,  the  consent  of  the  company 
will  be  presumed.18 

15.  There  has  been  considerable  controversy  in  the  country,  how 
far  railway  companies  have  the  legal  right  to  require  colored  pas- 
sengers to  sit  in  a  particular  car,  or  portions  of  the  car.  That  right 
was  maintained  by  the  Supreme  Court  of  Pennsylvania.18  But  it 
has  been  denied  in  other  courts.  The  recent  amendments  of  the 
United  States  Constitution,  have  been  supposed  by  some  to  settle 
this  question.  There  seems  to  be  no  sufficient  reason  why  any 
such  discrimination  should  now  be  made,  and  when  the  unfortu- 
nate animosities  growing  out  of  the  former  existence  of  slavery  in 
the  country  shall  have  effectually  subsided,  it  is  to  be  hoped  that 
any  such  questions  will  cease  to  be  raised.  Persons  of  the  highest 
culture  and  refinement,  as  a  general  thing,  feel  less  sensitive  on 
this  subject  than  others,  and  their  example  will  constantly  tend  to 
lead  others  in  the  right  path. 

16.  A  regulation  of  a  street-railway  company  requiring  passen- 
gers to  enter  and  leave  the  cars  by  the  rear  platform  is  highly  just 
and  reasonable  ;  and  a  passenger  who  suffers  injury  from  the  need- 

17  Jennings  v.  Great  Western  Railw.  Co.,  12  Jur.  (N.  S.)  331. 

18  Westchester  Railw.  v.  Miles,  55  Penn.  St.  209. 

[*107] 


116  BT-LAWS   AND   STATUTES.  PART  II. 

less  violation  of  such  regulation  has  no  claim  for  compensation 
against  the  company,  even  when  the  driver  was  in  fault.19  And 
the  permission  of  the  driver  will  not  excuse  the  passenger  in  the 
violation  of  a  known  rule  of  the  company.19  Such  company  owes 
its  passengers  the  highest  degree  of  care,  hut  only  ordinary  care  to 
the  general  public.20 

19  Bait.  Citj  Passenger  Railw.  v.  Wilkinson,  30  Md.  224. 
M  Pendleton  Street  Railw.  v.  Shires,  18  Ohio  (N.  S.),  255.     See  C.  C.  &  C. 
Railw.  v.  Terry,  8  id.  570.- 

[*107] 


§  29.  CAPITAL    STOCK  —  LIMITATIONS.  117 


CHAPTER    VII. 

CAPITAL   STOCK. 

SECTION     I. 

Limitations. 

1.  General  rights  of  shareholders.  I  3.    Cannot  mortgage,  unless  on  special  license 

2.  Capital  stock  not  the  limit  of  property.  of  the  legislature. 

§  29.  1.  All  joint-stock  companies  are  allowed  to  raise  a  certain 
amount,  and  sometimes  an  indefinite  amount,  of  capital,  by  the 
subscription  of  the  members ;  the  corporation  in  fact,  generally 
consisting  of  the  contributors  of  stock  and  their  assignees,  which 
is  divided  into  shares,  transferable  according  to  the  by-laws  and 
charter  of  the  corporation,  entitling  the  owner  for  the  time  being, 
to  the  rights  of  voting,  either  in  person  or  by  proxy,  as  a  general 
thing,  and  to  a  participation  in  the  profits  of  the  enterprise.1 

2.  The  capital  stock  of  a  corporation  is  not  necessarily  the  limit 
of  its  property.2  It  is  not  uncommon  for  charters  of  stock  com- 
panies to  contain  restrictions  and  limitations  in  regard  to  their 
right  or  capacity  to  hold  real  estate,  and  sometimes  even  in  regard 
to  personal  estate. 

3.  But  railway  companies,  being  created  for  the  purpose  of  car- 
rying into  effect  a  definite  enterprise,  must  almost  of  necessity 
have  the  power  to  issue  sufficient  stock  to  accomplish  the  under- 
taking, or  to  raise  the  requisite  funds  in  some  other  mode,  as  by 
loan  and  mortgage.  And  where  the  stock  is  limited,  and  often 
where  it  is  not,  these  corporations  have  been  compelled,  either  to 
abandon  the  enterprise,  or  to  resort  to  loans  and  mortgages,  which 
being  in  some  sense  a  desperate  mode  of  raising  funds,  as  long  as 
the  company  have  power  to  issue  stock,  could  only  be  justified, 
*  ordinarily,  by  a  strict  and  fatal  necessity,  and  by  permission  of 
the  legislature,  as  is  generally  considered.3 

1  Walford  on  Railways,  252;  Penobscot  Railw.  v.  White,  -II  Me.  512. 

2  Barry  v.  Merchants1  Exchange  Co.,  1  Sandford's  Ch.  280;  South  Bay 
Meadow-Dam  Co.  v.  Gray,  30  Me.  547. 

*  Post,  §§  148,  234,  235. 

[*108,  109] 


118  CAPITAL    STOCK.  PART  II. 

SECTION     II. 
Conditions  precedent,  which  the.  Public  Authorities  may  enforce. 
d,  must  all  be  subscribed.     |  2.  Payments  at  time  of  subscription. 

$  30.  1.  If,  by  the  charter,  the  stock  of  the  company  is  divided 
into  a  certain  number  of  shares,  that  number  cannot  be  changed 
by  act  of  the  company.1  And  if  the  charter  either  expressly  or  by 
legal  intendment  require,  that  a  certain  number  of  shares  be  sub- 
scribed before  any  assessment  is  laid,  no  valid  assessment  can  be 
laid  until  that  number  be  bona  fide  subscribed,  and  if  it  is  at- 
tempted the  company  may  be  dissolved.2 

l!.  Ami  where  the  general  law  of  the  state,  or  the  particular 
charter,  requires  a  given  proportion  of  subscriptions  to  be  paid  in 
at  the  time  of  subscription,  this  condition  must  be  complied  with, 
or   the    subscriptions    will    not   fulfil   the    condition    precedent.3 

1   Salem  Mill-Dam  Co.  r.  Ropes,  6  Pick.  23. 

*  Salem  Mill-Dam  Co.  v.  Ropes,  6  Pick.  23 ;  Central  Turnpike  Co.  v.  Valen- 
tine, 10  Pick.  1  12.  Where  the  capital  stock  consists  of  a  given  number  of  shares 
of  given  amount,  no  valid  assessment  for  the  general  purposes  of  the  enterpri.-e 
can  he  made  until  the  whole  number  of  shares  is  subscribed:  and  if  any  of  the 
subscriptions  lie  made  upon  conditions  precedent,  it  must  be  shown  that  such 
conditions  have  been  waived  or  performed.  10  Pick.  142.  But  assessments  to 
defray  the  expenses  of  the  incorporation,  organization,  and  preliminary  examina- 
tion, similar  to  those  under  the  provisional  companies  in  England,  have  been 
allowed  to  !)<■  made  before  the  stock  of  the  company  is  all  subscribed.  6  Pick. 
23.  And  in  a  suit  upon  subscriptions  to  stock  in  a  corporation,  where  by  the 
charter  a  given  amount  of  stock  is  recpiired  to  be  subscribed  before  the  corpora- 
tion can  go  into  operation,  it  is  necessary  to  allege  the  latter  fact,  and  the  omis- 
sion will  be  ground  of  error,  although  the  question  is  not  raised  at  the  trial. 
I'.x'r  v.  Lex,  &  Big  S.  Railw.,  2  Met.  (Ky.)  314. 
1 1  ghland  Turnpike  Co.  v.  M'Kean,  11  Johns.  98  ;  1  Caines's  Cas.  85  ;  Wood 
r.  C  &  (  .  Etailw.,  32  Ga.  273.  But  see  post,  §  51,  where  it  will  appear,  that 
although  the  public,  or  the  other  shareholders,  may  insist  upon  the  payment,  in 
••I  lie'  Bums  required  by  the  charter  to  lie  paid  at  the  time  of  subscription, 
this  i-  a  condition  which  cannot  be  taken  advantage,  of  by  the  subscriber,  as  be- 
tween himself  ami  the  company,  in  an  action  for  calls.  And  it  has  been  held, 
that  the  Btock  subscriptions  to  a  railway,  with  banking  privileges,  cannot  be  paid 
in  bills  of  the  company,  but  must  all  be  paid  in  specie.  King  v.  Elliott,  5  Sm.  & 
-       The  charter  in  this  case  required  $20  paid  in  specie  at  the  time  of  sub- 

[*109] 


§31. 


SHARES    PERSONAL    ESTATE. 


119 


Where  *  the  charter  of  a  railway  company  provided  that  the  whole 
capital  stock  should  be  subscribed,  before  any  of  the  powers  and 
provisions  of  the  charter  should  be  put  in  force,  and  the  company 
made  a  call  upon  the  shares  before  the  subscriptions  were  com- 
pleted, and  commenced  an  action  after  they  were  so,  it  was  held 
the  action  could  not  be  maintained,  the  completion  of  the  sub- 
scription being  necessary  to  enable  the  company  to  make  the  call.4 


SECTION    III. 

Shares  Personal  JEstate. 


1.  Railway  shares  personal  estate  at  common 

laiv. 

2.  Not  an  interest  growing  out  of  land,  or 

goods,  wares,  and  merchandise. 


3.  Early  cases  treated  such  shares   as  real 
estate. 


§  31.  1.  The  shares  of  railway  companies  are  now  almost  uni- 
versally regarded  as  personal  estate.  The  English  statute  so  de- 
clares them.  Hence  the  transfer  of  such  shares  is  not  required  to 
be  in  writing,  nor  are  they  regarded  as  coming  within  the  acts  of 
*  mortmain.1    This  has  been  repeatedly  decided  in  regard  to  shares 

scription.  Subscriptions  in  the  name  of  infants,  unless  some  one  is  responsible 
for  payment  of  calls,  are  not  a  compliance  -with  the  charter.  Roman  v.  Fry,  5 
J.  J.  Marshall,  634.  But  if  the  corporation  acquiesce  in  such  subscriptions,  they 
cannot  afterwards  object.  Creed  v.  Lancaster  Bank,  1  Ohio  (N.  S.),  1.  See 
Beach  v.  Smith,  28  Barb.  254.  See  also  East  Pascagoula  Hotel  Co.  v.  West, 
13  La.  Ann.  545 ;  Piscataqua  Ferry  Co.  v.  Jones,  39  N.  H.  491 ;  Fiser  v.  Miss. 
&  Tenn.  Railw.,  32  Miss.  359;  Hayne  v.  Beauchamp,  5  Sm.  &  Mar.  515,  537  ; 
Lewis  v.  Robertson,  13  id.  558;  Barrington  v.  Miss.  Central  Railw.,  32  Miss. 
763;  Miss.  &  Tenn.  Railw.  v.  Harris,  36  Miss.  17. 

But  it  has  been  held  that  a  condition  in  the  charter,  that  one  dollar  per  share 
shall  be  paid  at  the  time  of  subscription,  and  the  company  organized  when  one 
thousand  shares  are  subscribed,  does  not  apply  to  subscriptions  made  after  the 
organization  of  the  company,  nor  will  the  failure  of  the  company  to  build  its  road 
within  the  time  limited  in  the  charter  enable  the  subscribers  to  defend  against 
calls.     Taggart  v.  West  Maryland  Railw.,  24  Md.  563. 

*  Norwich  &  Lowestoft  Navigation  Co.  v.  Theobald,  1  M.  &  M.  151.  It  is 
not  competent  for  all  the  shareholders  to  reduce  the  amount  of  the  capital  stock, 
by  mutual  consent,  below  that  fixed  in  the  charter.  If  that  is  attempted,  it  will 
be  enjoined  upon  a  bill  brought  by  the  company  against  the  shareholders  and 
projectors.     Society  of  Practical  Knowledge  v.  Abbott,  2  Beav.  559. 

1  Ashton  v.  Lord  Longdale,  4  Eng.  L.  &  Eq.  80.     This  case  extends  the  same 

[*110,  111] 


[20  CAPITAL    STOCK.  PART  II. 

of  canal  ami  dock  companies,  and  bonds  secured  by  an  assign- 
ment of  the  rates.2  Such  shares  may  be  sold  by  parol  where 
the  ■  nil a.t  is  executory.8  And  it  would  seem  that  the  same 
view  would  prevail  ill  the  English  courts,  even  where  there  is  no 
Statutory  declaration   that  the  shares  shall  be  deemed   personal 

2.  And  the  sale  of  foreign  railway  shares  standing  in  the  name 
of  another  person,  and  a  guarantee  that  such  person  shall  deliver, 
not  be  in  writing,  either  as  having  respect  to  an  interest 
growing  out  of  land,  or  as  an  undertaking  for  another,  the  under- 
taking  being  original  and  not  collateral.4  Railway  shares  are 
nei i her  an  interest  in  land,  nor  goods,  wares,  and  merchandise, 
within  the  statute  of  frauds.5 

"..  Some  of  the  early  English  cases  treated  the  shares  of  incor- 
porated companies  as  real  estate,  where  the  interest  grew  out  of 
the  use  or  improvement  of  real  estate,6  and  a  similar  view  is  taken 
in  some  of  the  American  states."  But  the  settled  rule  upon  the 
subject  now.  both  in  England  and  in  this  country,  is  that  before 
stated.8     This  has  often  been  decided  in  recent  analogous  cases. 

rule  to  ihc  debentures  of  such  companies.  Neither  is  railway  scrip  within  the 
Mortmain  Act.  Bui  mortgages  given  by  a  railway  company  of  the  undertaking 
and  tolls  may  1>"  within  the  act.  So  also  shares  in  a  bank  secured  by  mortgages. 
•  Perigal,  16  Simons.  533;  The  King  v.  Chipping  Norton,  5  East,  239. 
-  Sparling  v.  Parker,  9  Beav.  450;  Thompson  v.  Thompson,  1  Coll.  C.  C. 
881  :  Hilton  v.  Giraud,  1  De  <;.  &  S.  183;  Walker  v.  Milne,  11  Beav.  507.  But 
Bee  Tomlinson  r.  Tomlinson,  9  id.  459. 

;  Bradley  v.  Holdsworth,  .3  M.  &  W.  422;  Bligh  v.  Brent,  2  Y.  &  Coll.  268, 
294.      1  his  is  an  elaborate  case  establishing  the  proposition  that  the  shares  in  a 
ition,  whose  works  are  real  estate,  are  nevertheless  personal  estate,  and 
this  upon  general  principles  of  the  common  law. 
4  Hargreaves  >■.  Parsons,  13  M.  &  W.  501. 

mble  v.  Mitch  11,  2  Railw.  C.  70;  s.  c.  11    Ad.  &  Ellis,  205.     See  also 
i'   v.  .Ml. re  hi,  12  Simons,  ISO:  Tempest  v.  Kilner,  3  C.  B.  219;  Knight 
W.  66. 
6  Dryhutter  v.  Bartholomew,  2   Peere  Wms.  127:  Townsend  v.  Ash,  3  Atk. 
o.  [ngrara,  2  Vesey,  Jr.  652. 
lies  v.  Cowles,  :.'  Conn.  567.     See  also  Cape  Sable  Company's  case,  3 
Bland's  Ch  Binney's  case,  2  id.  99;  Price  v.  Price,  <;  Dana,  107; 

M<  Wan-,  341  ;  Copeland  v.  Copeland,  7  Bush,  349. 

W  ilford,  251  :  mh,  i  31,  aid  cases  cited  in  n  >tes   1.  2,  :),  and  4;  Tippets 

r.  Walker,  I  Mis-.  595,  596,  opinion  of  /'arsons,  ('.  J.     Speaking  of  a  turnpike 

:   •'  When   the  road   is   made,   the  corporation  is  entitled  to 

demand  and  receive  a  toll  of  travellers  for  the  use  of  it,  in  trust  for  the  members 


§  31.  SHARES    PERSONAL    ESTATE.  121 

*The  fee  of  land  being  in  the  corporation,  vests  no  interests  of  the 
nature  of  real  estate  in  the  separate  shareholders.9 

of  the  corporation,  in  proportion  to  their  respective  shares.  The  property  of 
every  member  is  the  right  to  receive  a  proportional  part  of  the  tolls,  which  is 
considered  as  personal  estate." 

In  Howe  ».  Starkweather,  17  Mass.  240,  243,  Parker,  C.  J.  says:  "Shares 
in  a  turnpike  or  other  incorporated  company,  are  not  chattels.  They  have  more 
resemblance  to  choses  in  action,  being  merely  evidence  of  property." 

In  1  Greenleaf's  Cruise,  39,  40,  the  subject  is  very  fully  and  fairly  presented, 
and  the  following  conclusion  arrived  at,  in  regard  to  the  state  of  the  law  in  the 
United  States:  "  Latterly  it  has  been  thought  that  railway  shares  were  more 
properly  to  be  regarded  as  personal  estate.'1 

The  same  view  is  held  in  Bank  of  Waltham  v.  Waltham,  10  Met.  334 ;  Hutch- 
ins'  Adm'r  v.  The  State  Bank,  12  Met.  421 ;  Denton  v.  Livingston,  9  Johns.  96, 
100 ;  Planters'  &  Merchants'  Bank  v.  Leavens,  4  Alabama,  753  ;  Union  Bank 
of  Tennessee  v.  The  State,  9  Yerger,  490 ;  Brightwell  v.  Mallory,  10  id.  196 ; 
Heart  v.  State  Bank,  2  Dev.  Ch.  Ill ;  State  v.  Franklin  Bank,  10  Ohio,  91,  97  ; 
Slaymaker  v.  Gettysburg  Bank,  10  Penn.  St.  373 ;  Gilpen  v.  Howell,  5  Penn.  St. 
41,  57  ;  Johns  v.  Johns,  1  Ohio  (N.  S.),  350  ;  Arnold  v.  Ruggles,  1  Rhode  Island, 
165. 

A  distinction  has  sometimes  been  attempted  between  the  shares  of  a  bank  or 
manufacturing  corporation,  and  a  turnpike  or  railway,  in  regard  to  their  partak- 
ing of  the  realty.  But  the  slightest  examination  will  satisfy  us  that  there  is  no 
substantial  ground  for  any  such  distinction.  The  one  may  be  more  intimately 
connected,  in  its  existence  or  operation,  with  real  estate,  but  both  must  have 
some  connection,  more  or  less  intimate,  and  in  both  the  shareholders  have  no 
title  to  the  land,  that  residing  altogether  in  the  corporation,  while  the  shares  are 
merely  a  right  to  the  ultimate  profits  of  the  company,  and  are  as  really  and  un- 
questionably choses  in  action  as  promissory  notes,  bills  of  exchange,  or  bonds 
and  mortgages,  of  natural  or  corporate  persons.  Wheelock  v.  Moulton,  15  Vt. 
519  ;  Isham  v.  Ben.  Iron  Co.,  19  Vt.  230.     See  also  Johns  v.  Johns,  supra. 

9  Ackland  v.  Lewis,  1  K.  &  G.  334,  Registration  cases. 

[*112] 


l'J2  TRANSFER    OF    SHARES.  PART  II. 


♦CHAPTER    VIII 

TRANSFER   OF    SHARES. 
SECTION    I. 


Restrictions  upon  Transfer 

.  /vr/'  ons  of  charter  to   be  ob 

7 


sent  iL 

2.  //'   not    made    exclusive,   held    directory 

mere!//. 

3.  /  rnu$ual  and  inconvenu  m  restrictions  void. 


4.  Lien  upon  stock  for  the  indebtedness  of  the 
owner  is  valid. 

5.  But  such  li'  n  is  not  implied. 

6.  Where  transfer  is  wrongfully  refused,  ven- 

dee may  recover  value  of  the  company. 


§  32.  1.  We  cannot  here  attempt  to  show  in  detail  all  the  inci- 
dents of  the  transfer  of  stock  in  railway  companies.  It  is  transfer- 
able much  the  same  as  other  personal  property,  excepting  only  that 
any  express  provision  of  the  charter  upon  that  subject  must  be 
regarded  as  of  paramount  obligation.1 

1  Strictly  speaking,  perhaps  no  shares  in  any  joint  enterprise  are  transferable 
so  as  to  introduce  the  assignee  into  the  association,  as  a  member,  unless  it  be 
joint-stock  companies  and  corporations,  formed  in  pursuance  of  legislative  au- 
tlioiity.  And  in  the  case  of  legislative  incorporations,  the  shares  are  transfer- 
able, only  under  the  charter,  and  according  to  its  terms.  Duvergier  v.  Fellows, 
.')  Bing.  l'I*.  li*, 7,  opinion  of  Best,  C.  J.  A  mere  partnership  cannot  be  so 
constituted,  a-  to  release  the  assignor  of  a  share  from  all  liability  to  third  per- 
sons, and  introduce  the  assignee  at  once,  and  completely,  into  his  place.  Blun- 
dell  v.  Winsor,  8  Simons,  601,  opinion  of  Shadwell,  V.  C. ;  Jackson  v.  Cocker, 
4  Beavan,  •"•!».  (13. 

In  tli.'  English  courts  it  has  been  held,  that  where  the  charter  of  a  corpora- 
tion or  the  deed  of  settlement  required  the  assent  of  the  directors  to  complete 
the  title  of  the  purchaser  of  shares,  it  was  the  duty  of  the  seller  to  procure  this 
in  order  to  comply  with  his  contract  to  convey.  Wilkinson  v.  Lloyd,  7 
Q.  II.  l'7  :  Bosanquel  v.  Shortridge,  1  Exch.  699. 

And  all  corporations  may,  in  self-defence,  require  all  calls  made  upon  their 
stork  to  be  paid,  before  they  will  substitute  the  name  of  the  purchaser  of  shares 
upon  their  books,  for  the  original  subscriber,  as  after  this  substitution  they  have 
no  longer  any  claim  upon  such  subscriber,  and  it  would  be  liable  to  defeat  many 
public  enterprises  of  moment,  and  after  large  expenditures  have  been  incurred, 
if  the  subscribers  could,  at  will,  relieve  themselves  from  all  liability  to  pay  calls, 
by  transferrin- their  .hares  to  irresponsible  persons.     Hall  v.  Norfolk  Estuary 

[*113J 


§  32.  RESTRICTIONS   UPON   TRANSFER.  123 

*  2.  In  many  cases,  however,  where  the  charter  only  provides  a 
mode  of  transfer,  and  does  not  declare  this  mode  exclusive  of  all 

Co.,  7  Railw.  Cas.  503  ;  s.  c.  8  Eng.  L.  &  Eq.  351.     But  the  assignee  of  a  share 
may  always  insist  upon  becoming  a  member  upon  paying  all  calls. 

Questions  of  some  difficulty  often  arise  between  shareholders  and  the  company, 
in  regard  to  an  informal  transfer  having  been  confirmed  by  acquiescence.  In 
Shortridge  v.  Bosanquet,  16  Beav.  84  ;  s.  c.  17  Eng.  L.  &  Eq.  331,  and  in  ex  p arte 
Bagge,  13  Beav.  1G2 ;  s.  c.  4  Eng.  L.  &  Eq.  72,  it  is  held  that  if  the  entry  of  the 
transfer  is  made  upon  the  books  of  the  company,  and  especially  where  the  com- 
pany liave  dealt  with  the  shareholder  claiming  under  the  transfer,  they  cannot 
treat  the  transaction  as  void,  for  any  want  of  form  in  the  transfer,  though  in  a 
matter  specially  required  by  the  charter  and  not  immaterial,  but  which  their  own 
irregularities  had  rendered  it  impossible  to  observe.  And  where  the  secretary  of 
a  joint-stock  company  fraudulently  transferred  shares,  and  the  proprietor  of  the 
shares  treated  the  transaction  as  being  valid  against  the  transferee,  but  filed  a 
bill  against  the  company  for  damages,  it  was  held  he  was  not  entitled  to  relief. 
Duncan  v.  Luntley.  2  McN.  &  Gord.  30 ;  s.  c.  2  Hall  &  Twells,  78. 

In  ex  parte  StrafFon's  Executors,  4  De  G.  &  S.  256  ;  s.  c.  10  Eng.  L.  &  Eq.  275, 
the  Lord  Chancellor,  St.  Leonards,  thus  characterizes  these  transactions,  which, 
although  informal  in  some  respects,  are  constantly  acquiesced  in  by  both  parties, 
until  there  comes  some  crisis  in  the  affairs  of  the  company,  perhaps,  or  the  trans- 
feree becomes  insolvent.  "  There  would  be  no  safety  for  mankind  in  dealings 
of  this  kind,  extensive  as  they  are,  with  so  much  money  embarked  in  them,  if 
the  courts  had  ever  held,  as  they  never  have  held,  that  every  minute  circumstance 
must  be  obeyed,  which  the  directors  themselves  ought  to  have  obeyed  ;  but  if  they 
disregard  them,  if  the  shareholders  do  not  call  them  to  account  for  doing  so,  if  a 
course  of  action  has  been  adopted  in  the  particular  company,  without  complaint, 
although  they  may  have  arrived  at  making  a  man  a  shareholder,  by  what  I  should 
call  a  short  cut,  instead  of  going  through  all  the  necessary  formalities,  they  mav 
be  perfectly  good  as  between  parties  thus  dealing  with  the  directors,  and  the 
directors  themseves,  so  as  to  bind  them." 

And  in  Bargate  v.  Shortridge,  5  Ho.  Lds.  297  ;  s.  c.  31  Eng.  L.  &  Eq.  44,  in 
the  House  of  Lords,  upon  elaborate  argument  and  great  consideration,  it  seems 
to  have  been  definitively  settled  in  England,  that  where  the  deed  of  a  joint-stock 
company  required  the  certificate  of  consent  of  three  directors  to  the  transfer  of 
the  shares  of  the  company,  and  in  practice  this  had  never  been  given,  but,  for 
ten  years,  transfers  had  continually  been  made  upon  the  verbal  assent  of  the 
managing  director  upon  the  spot,  and  about  nine-tenths  of  the  original  shares 
had  been  transferred  in  this  manner,  and  S.  having  transferred  his  shares  in  the 
same  mode  to  T.,  and  his  name  having  been  entered  upon  the  books  of  the  com- 
pany, they  could  not  afterwards  refuse  to  regard  T.  as  a  member. 

But  in  such  case,  where  the  directors  afterwards  cancelled  the  name  of  T.  in 
their  share  register-book,  on  the  ground  that  the  consent  of  the  directors  was 
wanting,  it  was  held  that  S.  had  ceased  to  be  a  member  of  the  company,  and 
was  entitled  to  an  injunction  against  a  scire  facias  prayed  out  against  him  by  a 
creditor  of  the  company,  as  a  shareholder. 

It  was  said  by  Lord  St.  Leonards,  who  delivered  the  leading  opinion  :  "  Where 

[*114] 


124  TRANSFER    OF    SHARES.  PART  II. 

•others,  the  provision  has  been  regarded  as  merely  directory,  and 
not  indispensable  to  the  vesting  of  title  in  the  assignee.  And 
this  has  generally  been  so  regarded,  where  the  express  provisions, 
in  relation  to  the  transfer  of  shares,  exist  only  in  the  by-laws  of 
the  corporation. 

3.  A ii.l  any  unusual  restriction  in  the  by-laws  of  a  corporation 
upon  the  transfer  of  stock,  as  that  it  shall  be  made  only  upon  the 
books  of  the  corporation,  in  person,  or  by  attorney,  and  with  the 
consent  of  the  president,  or  other  officers  of  the  corporation,  has 
been  regarded  as  void,  as  an  unreasonable  restraint  upon  trade,2 

the  directors  of  a  company  do  acts  in  a  matter  in  which  they  have  no  authority, 
such  acts  are  altogether  null  and  void.  But  where  the  acts  are  within  their 
power  and  duty,  and  are  either  omitted  or  improperly  done,  and  thereby  third 
parties  arc  damaged,  neither  a  court  of  law  nor  of  equity  will  allow  the  company 
to  take  advantage  of  their  neglect." 

This  it  seems  to  us,  is  a  sound  distinction,  and  one  which  will  have  an  im- 
portant bearing  upon  the  fraudulent  over-issue  of  stock  by  the  directors  of  a 
company  whose  capital  is  limited,  and  all  issued  and  in  the  hands  of  bona  fide 
owners.     This  is  the   same  case  in  4  Exch.  699.     See  also  Taylor  ».  Hughes, 

2  Jones  &  La  Touche,  24 ;  Humble  v.  Langston,  7  M.  &  W.  517  ;  S.  C.  2  Railw. 
C.  533 ;  Ex  parte  Cockburn,  4  De  G.  &  Sin.  177 ;  s.  c.  1  Eng.  L.  &  Eq.  139. 
But  where  the  charter,  or  the  general  law,  requires  all  debts  of  the  owner  to 
be  paid  the  company  before  transfer  of  shares,  the  company  are  not  bound  to 
accept  a  transfer  otherwise  made.     Reg.  v.  Wing,  33  Eng.  L.  &  Eq.  80. 

2  Sargeant  o.  Franklin  Ins.  Co.,  8  Pick.  90;  Quiner,?;.  Marblehead  Ins  Co., 
10  Mass.  470;  Noyes  v.  Spalding,  27  Vt.  421;  Bates  v.  New  York  Ins.  Co., 

3  Johns.  Cas.  238;  Chouteau  Spring  Co.  v.  Harris,  20  Missouri,  382.  In  this 
last  case  the  charter  of  the  company  provided  that  the  stock  might  be  "trans- 
ferred on  the  books  of  the  company,"  and  the  company  were  authorized  "  to 
regulate  the  transfer  of  stock,"  by  by-laws.  And  a  provision  in  the  charter 
authorized  the  company,  in  certain  eases,  to  make  assessments  of  stockholders 
beyond  their  shares  of  stock.  It  was  held  that  no  such  assessment  could  be  made 
on  a  party,  alter  he  had  ceased  to  be  a  member,  by  a  transfer  of  his  stock; 
that  the  power  "  to  regulate  the  transfer"  did  not  include  the  power  to  restrain 
transfers,  or  to  prescribe  to  whom  they  might  be  made,  but  merely  to  prescribe 
the  formalities  to  be  observed  in  making  them,  and  that  the  company  could  not 
prevent  a  part}  from  selling  his  stock,  even  to  an  insolvent  person;  that  an 
assignment  "  upon  the  books  of  the  company"  was  sufficient  to  effect  a  change 
of  ownership,  without  taking  out  a  new  certificate  in  the  name  of  the  assignee; 
and  that  any  transfer  in  writing  was  valid  against  the  company,  if,  being  notified, 
they  refused  to  allow  it  to  be  made  according  to  their  by-laws. 

And  in  Dauchy  V.  Brown,  •_' 1  Vt.  197,  which  was  an  action  against  stock- 
holders, upon  the  proper  debt  of  the  corporation,  where  the  charter  provided, 
that  the  persons  and  property  of  the  corporators  shall  be  holden  to  pay  its  debts, 
and  that  any  execution,  which  should  issue  against  the  corporation,  might  be 

[*115] 


§  32.  RESTRICTIONS    UPON   TRANSFER.  125 

*  unless  as  a  provision  to  secure  the  indebtedness  of  shareholders. 
In  such  case  it  is  sometimes  said  the  assignee  need  only  make  his 
right  known  to  the  company,  and  require  the  transfer  entered  upon 
the  books,  and  his  title  becomes  perfected.3 

4.  But  if  the  former  owner  was  indebted  to  the  corporation,  and 
the  charter  required  all  such  indebtedness  to  be  liquidated,  before 
transfer  of  stock,  such  indebtedness  will  remain  a  lien  upon  the 
stock,  in  the  hands  of  the  assignee.4     And  where  the  charter  of 

levied  upon  the  person  or  property  of  any  individual  thereof,  it  was  held,  that 
the  stockholders  were  only  liable,  in  default  of  the  corporation,  and  that  judg- 
ment should  first  be  recovered  against  the  corporation,  and  the  statute  remedy 
strictly  pursued.  See,  also,  in  regard  to  the  remedy  against  stockholders,  who 
are  by  statute  made  personally  liable,  Southmayd  v.  Russ,  3  Conn.  52  ;  Middle- 
town  Bank  v.  Magill,  5  Conn.  28;  Child  v.  Coffin,  17  Mass.  64;  Roman  v.  Fry, 
5  J.  J.  Marshall,  634.  And  in  an  English  case,  Robinson  v.  Chartered  Bank, 
Law  Rep.  1  Eq.  32,  where  the  charter  required  that  no  one  should  become  a 
transferee  of  shares  unless  with  the  approval  of  the  directors,  it  was  held  that  the 
directors  must  use  this  power  reasonably  and  would  be  controlled  in  equity. 
But  where  the  charter  of  a  corporation  required  all  transfers  to  be  executed  by 
both  parties  and  approved  by  the  directors,  and  the  transferror's  name  had  been 
entered  upon  the  registry  upon  his  own  execution  merely,  and  the  company  was 
being  wound  up,  the  court  refused  an  application  to  remove  his  name  from  the 
registry.     Walker's  case,  Law  Rep.  2  Eq.  554. 

3  Sargent  v.  Franklin  Ins.  Co.,  8  Pick.  90;  United  States  v.  Vaughan,  3 
Binney,  394;  Ellis  v.  Essex  Bridge  Co.,  2  Pick.  243;  Chester  Glass  Co.  v. 
Dewey,  16  Mass.  94;  Agricultural  Bank  v.  Burr,  11  Shepley,  256;  Same  v. 
Wilson,  id.  273. 

4  Union  Bank  v.  Laird,  2  Wheat.  390;  Bank  of  Utica  v.  Smalley,  2  Cow. 
770;  Rogers  v.  Huntingdon  Bank,  12  Serg.  &  R.  77  ;  Downer  v.  Bank  of  Zanes- 
ville,  Wright,  477  ;  Farmers'  Bank  of  Maryland  v.  Iglehart,  6  Gill,  50 ;  Hall  v. 
U.  S.  Insurance  Co.,  5  Gill,  484.  See  Angell  &  Ames,  §  355  and  note.  In 
Marlborough  M.  Co.  v.  Smith,  2  Conn.  579,  it  was  said  the  transfer  of  shares  to 
constitute  the  assignee  a  stockholder  must  be  in  strict  conformity  to  the  charter 
and  by-laws.  And  in  the  case  of  Pittsburg  &  Connellsville  Railw.  v.  Clark,  29 
Penn.  St.  146,  C.  J.  Lewis  goes  into  an  elaborate  review  of  the  cases  to  show, 
that  under  the  Pennsylvania  statutes,  which  provide,  that  no  transfer  of  shares 
shall  be  made  while  the  holder  remains  indebted  to  the  company,  except  by  con- 
sent of  the  board  of  directors,  and  no  transfer  shall  discharge  any  liabilities 
before  incurred ;  that  both  the  stock  and  the  holder  remain  liable  for  all  calls  due 
before  the  transfer,  and  that  the  original  subscriber,  who  promised  to  pay  fifty 
dollars  on  a  share,  is  indebted  to  the  company,  before  calls  made,  within  the 
meaning  of  the  statute ;  and  even  where  the  transfer  is  made  with  the  consent  of 
the  directors,  will  remain  liable  until  all  calls  are  paid,  notwithstanding  the 
statute  subjects  the  transferee  also  to  a  like  liability.  The  same  principle  was 
reaffirmed  in  Graff  v.  Pittsburg  &  Steubenville  Railw.,  31  Penn.  St.  489. 

[*116] 


126  TRANSFER  OF  SHARES.  PART  II. 

*the  company  requires  the  payment  of  all  sums  due  before  regis- 
tering  a  transfer,  this  will  embrace  all  calls  made  and  which  are 
payable  at  the  date  of  the  transfer.5 

*  ").  A  corporation  has  no  implied  lien  upon  stock  for  the  liabili- 
of  tin-  stockholders  to  the  company.0 

*6.  And  when  the  company  wrongfully  refuse  to  record  trans- 
fers  of  shares  on  their  books,  the  vendee  may  recover  the  price  of 
such  shares,  the  company  having  caused  them  to  be  sold,  as  the 
property  of  the  vendor.6 

1  Open  ex  parte,  0  Jur.  (N.  S.)  615.  This  question  is  elaborately  discussed 
in  a  case  in  Maryland,  with  the  following  results:  — 

Tlu-  charter  of  a  bank  provided  that  its  shares  of  stock  shall  be  transferable 
u]H, n  the  books  of  the  corporation  only  according  to  such  rules  as  shall  be  estab- 
lished by  the  president  and  directors ;  but  all  debts  actually  due  and  payable  to 
the  corporation  1<\  a  stockholder,  requesting  a  transfer,  must  be  satisfied  before 
such  transfer  .-hall  be  made,  unless  the  president  and  directors  shall  direct  to  the 
contrary. 

Ibid,  1.  That  this  lien  on  the  stock  is  not  waived  by  the  form  of  a  certificate 

for  stock  declaring  that  the  stockholder  "  is  entitled  to shares  of  stock 

transferable  only  at  said  bank  personally  or  by  attorney  on  surrender  of  this  cer- 
tified!. .'" 

L'.  The  assignee  of  a  stockholder  takes  the  equitable  assignment  subject  to  the 
rights  of  the  bank  against  the  stockholder,  under  its  charter,  of  which  he  is  bound 
to  take  notice. 

:;.  This  lien  attaches  to  balances  due  the  bank  by  the  stockholder,  for  over- 
drafts on  (hecks,  but  not  to  notes  or  bills  on  which  the  stockholder  may  be  a 
party,  as  maker *or  indoi'ser,  and  not  due  at  the  time  the  transfer  is  demanded. 

1.   The  words  "  debts  actually  due  and  payable,"  imply  more  than  mere  in- 
debtedness; the  indebtedness  contemplated  is  only  a  deb  Hum  solvent! urn  in  pre- 
.  not  in  futuro. 

5.  Where  an  assignee  demands  a  transfer,  but  refuses  to  pay  the  debts  then 
due  the  bank  by  the  stockholder,  and  afterwards  makes  a  second  demand,  when 
other  notes  of  the  stockholder  had  become  due  and  payable,  he  cannot  obtain  a 
transfer  without  paying  all  the  debts  due  at  the  time  of  the  last  demand.  Reese 
&  !  isher  d.  Bank  of  Commerce,  L4  Md.  271.  And  such  lien  will  be  good  against 
the  money,  for  which  the  shares  were  sold,  in  the  hands  of  the  official  liquidator, 
for  the  shareholder.      In  re  General  Exchange  Bank,  L.  R.  6  Ch.  App.  818. 

"  Mass.  1 1  .,n  Go.  v.  Hooper,  7  Cush.  183;  Heart  v.  State  Bank,  2  Dev.  Ch. 
Ill;  Sargent  v.  Franklin  Ins.  Co.,  8  Pick.  90,  and  cases  cited  supra,  note  2. 
But  dividi  nds  due  and  unpaid  may  be  said  to  he  a  fund,  in  the  hands  of  the 
corporation,  which  they  are  not  obliged  to  pay  to  the  assignee  of  the  stock, 
in. til  their  debts  from  the  assignor  are  liquidated.  Dividends  are  strictly  due 
only  to  the  assignor,  and  would  not  probably  pass  by  a  mere  sale  of  the  stock, 
-  there  were  -wne  special  ground  for  giving  the  transfer  of  the  stock  that 
ion. 

[♦117-119] 


§33. 


CONTRACTS   TO   TRANSFER   STOCK. 


127 


SECTION    II. 


Contracts  to  transfer  Stock. 


1.  Transfer  under  English  statutes.     Regis- 

tered companies. 

2.  Contracts  to  transfer   stock  valid,   where 

bona  fide. 

3.  Vendor  must  have  the  stock,  when  due. 

n.  3.    Vendor  viust  procure  the  consent  of  di- 
rectors, where  requisite. 

4.  Force  of  usages  of  stock-exchange. 

5.  Company  will  reform  their  registry  at  its 

peril. 


6.  10.   Company  may  compel  one  to  accept 

shares  on  contract. 

7.  Stock  standing  in  joint  names  belongs  to 

survivors. 

8.  Mode  and  effect  of  correcting  registry. 

9.  If  the  company  vary  the   contract,  spe- 

cific performance  will  be  denied. 

10.  Closing  contracts  by  offer  and  acceptance. 

11.  Form  of  transfer.     Two  may  join  in  one 

transfer. 


§  33.  1.  Questions  often  arise  in  regard  to  transfers  of  stock  in 
incorporated  companies,  as  to  the  quantity  of  interests  conveyed, 
the  title  of  the  person  making  the  conveyance,  and  many  other  in- 
cidents. The  English  statutes  in  regard  to  the  registration  of 
*  railway  companies  are  not  intended  to  affect  the  property  in  the 
shares,1  and  a  transfer  is  valid,  although  made  before  the  registra- 
tion.2 

2.  It  would  seem,  too,  that  a  contract  to  transfer  stock  in  rail- 
way companies,  at  a  future  time,  which  the  party  neither  has,  nor 
is  about  to  have,  but  expects  to  purchase  in  the  market,  for  the 
purpose  of  fulfilling  his  undertaking,  is  nevertheless  a  valid  con- 
tract, and  not  illegal,  or  against  the  policy  of  the  law,3  and  that 

1  The  London  &  Brighton  Railw.  Co.  v.  Fairclough,  2  Railw.  Cases,  544 ; 
s.  c.  2  M.  &  G.  674. 

2  The  Sheffield,  Ashton-under-Lyne,  &  Manchester  Railw.  Co.  v.  Woodcock,- 
2  Railw.  Cases,  522 ;  s.  c.  7  M.  &  W.  574. 

3  Hibblewhite  v.  MIMorine,  5  M.  &  W.  462.  Mr.  Walford,  in  his  Treatise, 
256,  and  note,  intimates  that  the  law  of  France  regards  this  class  of  contracts  as 
illegal,  and  cites  Hannuic  v.  Goldner,  11  M.  &  W.  849,  in  confirmation.  But 
the  case  does  not  expressly  decide  the  point.  That  was  pleade.d,  and  the  court 
held  the  plea  bad,  as  amounting  to  the  general  issue,  and  the  party  had  leave  to 
amend.  Perhaps  it  is  chai'itable,  both  to  the  pleader  and  to  the  country,  to  sup- 
pose such  is  the  law  there,  as  Mr.  Walford  seems  to  have  done.  But  where  the 
deed  of  settlement  requires  the  assent  of  the  directors  to  a  transfer  of  shares, 
and  the  vendor  did  not  obtain  it,  and  in  the  mean  time  the  price  of  shares  fell 
in  the  market,  held  the  vendee  might  recover  back  his  money.  Wilkinson  v. 
Lloyd,  7  Q.  B.  27.     But  where  the  plaintiffs  covenanted  to  subscribe  for  stock 

[*120] 


128         •  TRANSFER  OP  SHARES.  PART  II. 

the  intimation  of  Lord  Tenterdi  n,4  that  such  contracts  were  illegal, 
;U1,1  qoI  to  be  encouraged  by  the  law  or  its  ministers,  is  not  to  be 
irded,  at  this  time,  as  sound  law,  however  good  sense,  or  good 
morality,  it  may  seem  to  be. 

8,  It  is  clearly  not  a  stock-jobbing  transaction  within  the  Eng- 
lish statute.6  But  to  the  performance  of  such  a  contract  it  seems 
*  to  be  requisite,  that  the  seller  should  bona  fide  procure  the  stock, 
by  the  time  appointed  for  the  transfer.0 

in  a  railway,  and  pay  ten  per  cent  thereon,  and  then  transfer  it  to  defendant, 
who  agreed  thereupon  to  pay  the  residue  and  save  the  plaintiffs  harmless,  and 
tlie  plaintiffs  subscribed  for  the  stock  and  paid  the  ten  per  cent;  but  the  by-laws 
of  the  company  provided  for  the  transfer  of  the  stock  on  the  books  of  the  com- 
pany  only  alter  the  payment  of  thirty  per  cent  of  its  amount,  unless  by  the  con- 
sent of  the  directors,  which  they  refused  to  giv°,  in  this  case,  and  the  plaintiffs 
tendered  the  defendant  an  instrument  whereby  they  assigned  and  transferred  the 
stock  and  constituted  him  their  attorney  to  transfer  the  same  on  the  books  of 
the  company,  which  was  refused  as  not  being  a  compliance  with  the  contract:  It 
was  held,  in  an  action  to  recover  damages  for  the  breach  of  the  contract,  that  the 
plaintiffs  bad  complied  with  their  covenant,  and  might  recover,  not  the  difference 
between  the  value  of  the  stock  at  the  time  of  refusal,  and  the  sum  due  upon  the 
subscription,  but  the  whole  sum  due  and  interest.  See  also  Orr  v.  Bigelow,  14 
N .  V 

*  in  Bryan  V.  Lewis,  Ry.  &M.  ,'586,  and  in  Lorymer  v.  Smith,  1  B.  &  C.  1. 

"  Hewitt  v.  Price,  4  M.  &.  G.  :555;  Mortimer  v.  M'Callan,  6  M.  &  W.  58. 

«  Hibblewhite  v.  M'Morine,  2  Railw.  C.  51-66;  s.  c.  6  M.  &  W.  200.  The 
comments  of  [sham,  .)..  in  Nbyes  v.  Spaulding,  27  Vt.  420,  42!),  may  be  regarded, 
perhaps,  as  giving  the  present  state  of  the  English  law  upon  this  subject.  "Con- 
tracts for  the  sale  of  stock  of  this  character  on  time  are  valid  at  common  law, 
and  can  be  enforced  by  action.  The  statute  7  Geo.  2,  c.  8,  made  perpetual  by 
10  Geo.  2,  C.  «.  has  rendered  some  contracts  of  that  character  illegal.  They 
are  rendered  void  so  far  as  the  public  slocks  of  that  country  are  concerned,  when 
the  seller  had  no  stock  at  the  time  of  making  the  contract,  and  none  was  ever 
nit. mlid  to  be  transferred  by  the  parties,  but  their  intention  was  to  pay  the  dif- 
ference merely  that  may  exist  between  the  market  value  of  the  stock  at  the  time 
of  the  transfer,  and  the  price  agreed  to  be  paid.  Such  contracts  are  rendered 
void  by  that  .statute,  and  are  treated  as  wagering  contracts  ;  '  the  seller  virtually 
betting  that  the  stock  will  fall,  the  buyer  that  it  will  rise.'  Chitry  on  Bills,  112, 
note  (w).  It  ha-  been  held,  that  railroad  stock  is  not  within  the  act.  Hewitt  v. 
Price,  I  M.  &  G.  ■'>■'<■'>:,  s.  c.  .".  Railw.  C.  175;  Fisher  v.  Price,  11  Beav.  194. 
In  the  case  of  .Mortimer  v.  M'Callan,  (J  M.  &  W.  70,  Lord  Abinger  observed, 
'  that  tli«'  act  was  made  for  the  purpose  of  preventing  what  is  declared  to  be  ille- 
gal trafficking  in  the  funds  by  selling  fictitious  stock  merely  by  way  of  (inferences  ; 
but  it  never  was  intended  to  affect  bona  fide  sales  of  stock.'  Elsworth  v.  Cole, 
2  M.  A:  W.  81  ;  2  Knit,  Comm.  168,  note  (b).  In  the  case  of  Grizewood  v. 
Blane,  20  Ei  g.  L.  &  Eq.  290,  it  was  held,  that  a  colorable  contract  for  the  sale 
of  railroad    shares,    where  no    transfer  is    intended,    but    merely    'differences,'' 

[*121] 


.§33.  CONTRACTS  TO  TRANSFER  STOCK.  129 

4.  The  English  reports,  both  in  law  and  equity,  and  especially 
the  more  recent  ones,  abound  in  cases  more  or  less  affecting  trans- 
fers of  shares  on  the  stock-exchange,  and  the  practice  and  law 
governing  transactions  between  brokers.  These  rules  are  allowed 
to  have  great  weight  in  fixing  the  construction  and  effect  of  con- 
tracts made  through  the  instrumentality  of  brokers.  In  the  sale 
of  shares  in  companies  requiring  the  consent  of  the  directors  or  of 
the  company  itself  to  the  transfer,  it  is  not  understood,  according 
to  these  rules,  that  the  vendor  or  his  broker  undertakes  to  procure 
that  consent,  and  if  he  does  all  that  is  requisite  to  effect  a  trans- 
fer of  the  equitable  interest  of  the  property,  and  there  is  no  ob- 
struction to  the  vendee  in  obtaining  the  registration  of  such 
transfer,  by  taking  the  prescribed  steps,  the  transfer  will  be  re- 
garded as  complete.7  There  have  been  somewhat  recently  two 
English  decisions  bearing  upon  the  sale  of  shares  upon  the  stock- 
exchange  which  seem  to  require  an  extended  statement  here.  In 
Coles  v.  Bristowe8  the  question  was  heard  in  chancery.  The 
custom  of  the  stock-exchange  seems  to  be  that  shares  are  bought 
and  sold  for  the  next  settling  day,  when  the  jobber  is  either  to  take 
the  liability  on  himself,  or  pass  the  names  of  transferees  to  whom 
no  reasonable  objection  can  be  taken ;  and  on  such  names  being 
accepted  by  the  vendor,  and  the  transfers  made  and  the  price  paid 
by  the  transferees,  the  personal  liability  of  the  jobber  to  the  ven- 
dor ceases.  It  was  accordingly  held,  that,  where  the  plaintiff  in- 
structed his  brokers  to  sell  certain  shares  for  him,  and  they 
disposed  of  them  to  the  defendants  for  the  next  settling  day,  both 
plaintiff  and  defendants  being  familiar  with  the  usages  of  the 
stock-exchange,  and  the  transaction  being  confessedly  subject 
thereto,  and  on  the  settling  day  the  defendants  passed  the  names 
of  persons  whom  the  plaintiff  accepted,  and  executed  transfers  to 
them,  and  received  the  price  of  them,  but  the  suspension  and 
winding  up  of  the-  company  between  the  sale  and  the  settling  day 

amounting  to  the  rise  or  fall  of  the  market,  is  gaming  within  the  8  &  9  Vict.  ch. 
109,  §  18;  s.  c.  11  Common  Bench,  538." 

7  Stray  v.  Russell,  1  Ellis  &  Ellis,  888,  916;  s.  c.  5  Jur.  (N.  S.)  1295;  s.  c. 
affirmed  in  Exch.  Chatnb.  2  Ellis  &  Ellis,  592.  See  also  Field  v.  Lelean,  G  H.  & 
N.  617,  where  a  custom  of  the  stock-exchange  in  regard  to  a  particular  class  of 
shares,  not  to  deliver  them  on  contracts  of  sale  until  the  payment  of  the  price, 
was  held  binding. 

a  17  W.  R.  105,  before  the  full  Court  of  Chancery  Appeal,  Lord  Chancellor 
Cairns,  and  Lords  Justices  Wood  and  Selwin. 

9  [*121] 


130  TRANSFER    OF    SHARES.  PART  II. 

having  rendered  the  registration  of  the  transfers  impossible,  it  was 
held  that  the  defendants,  who,  up  to  the  acceptance  of  the  trans- 
ferers, and  transferring  the  shares  to  them,  were  liable  to  indemnify 
the  vendor  in  respect  of  his  liability  on  the  shares,  became  there- 
upon exonerated  from  all  liability;  and  the  transferees  became 
liable  to  the  same  extent  by  accepting  the  transfer  as  if  they  had 
executed  it  on  their  part,  but  how  far  that  liability  will  extend  was  not 
determined  here.  But  it  was  here  held  that  the  vendor  of  shares 
on  the  stock-exchange  cannot  excuse  himself  from  being  bound  by 
the  usages  of  the  exchange,  so  long  as  he  continues  to  sell  there  by 
any  private  instructions  to  his  broker.  The  same  subject  is  very 
extensively  discussed  by  Lord  Chief-Justice  Cockburn  in  delivering 
the  opinion  in  Gressell  v.  Bristowe,9  with  the  same  general  results  ; 
so  that  it  must  now  be  regarded  as  settled  in  England  that  one 
who  sells  upon  the  stock-exchange  through  a  broker,  will  be  bound 
by  the  known  usages  of  the  place,  and  whether  such  usages  are  in 
fact  known  to  the  vendor  or  not  will  not  probably  be  held  essen- 
tial, so  long  as  they  are  of  general  notoriety  and  understood  both 
by  his  broker  and  that  of  the  other  party.  The  precise  point  of 
the  decisions  seems  to  be,  that  any  usage  of  the  stock-exchange 
which  is  uniform  and  reasonable  will  be  understood  to  form  one  of 
the  terms  of  sales  made  there,  unless  there  is  something  to  show 
that  the  parties  understandingly  waived  or  departed  from  it.  And 
the  fact  that  one  of  the  parties  gave  special  instructions  to  his 
broker,  which  were  not  communicated  to  the  broker  of  the  other 
party,  will  make  no  difference. 

*  5.  Where  the  company  assume  to  erase  transfers  from  their 
books  on  the  alleged  ground  that  they  are  merely  colorable,  and 
made  for  the  purpose  of  injuriously  affecting  the  interest  of  the 
company  or  others,  they  assume  the  burden  of  showing  such  to  be 
the  facts ;  and  the  transferees  will  be  entitled  to  a  mandamus  to 
compel  the  company  to  restore  their  names  to  the  registry  as  the 
proprietors.10 

3  17  \\  .  R.  128,  before  the  Exchequer  Chamber,  on  error  from  the  Com- 
mon Pleas,  L6  W.  EL  428;  8.  c.  Law  Rep.  3  C.  P.  112;  post,  §  36,  pi.  4,  n.  4. 

Ward  v.  South  Eastern  Raihv.,  2  Ellis  &  Ellis,  812;  s.  c.  6  Jur.  (N.  S.) 
890.  The  owner  of  shares,  unless  precluded  by  the  charter  of  the  company,  may 
lawfully  transfer  them  to  any  one  who  will  accept  the  same,  although  it  be  done 
to  escape  the  responsibility  of  membership.  Weston's  Case,  lie  Smith  &  Go., 
17  \Y.  R.  62;   Ex  parte  Rayner,  id.  64. 

[*122] 


§  33.  CONTRACTS   TO   TRANSFER   STOCK.  131 

6.  It  is  competent  for  the  company  to  maintain  a  bill  in  equity 
against  one  upon  an  agreement  to  accept  shares,  although  no  writ- 
ing has  been  signed  by  the  defendant  according  to  the  statute  re- 
quiring the  acceptance  to  be  in  writing.  The  contract  may  be 
enforced,  as  an  agreement  to  do  what  the  statute  requires,  and  the 
decree  will  settle  the  question  whether  the  defendant  or  some  other 
one  is  the  lawful  holder  of  the  shares  in  question.11 

7.  Where  stock  is  allowed  to  stand  in  the  joint  names  of  two 
persons,  they  will  be  regarded  as  joint  tenants,  unless  something  is 
shown  to  the  contrary,  and  the  company  may  treat  the  survivor  as 
the  owner  of  the  whole.12 

8.  A  court  will  not  interfere  to  compel  a  joint-stock  company  to 
correct  their  registry  by  removing  one  name  and  inserting  another 
while  an  action  at  law  is  pending  in  regard  to  the  same  matter.13 
Where  the  registry  is  altered  under  a  misapprehension  as  to  the 
genuineness  of  a  transfer  it  will  not  have  the  effect  to  transfer  the 
shares.14  Specific  performance  of  a  contract  to  sell  shares  will  be 
decreed  in  equity,  notwithstanding  the  constitution  of  the  company 
provides  that  no  shares  shall  be  transferred  except  in  such  mode  as 
the  board  shall  approve,  and  the  board  refuse  to  give  its  consent 
to  the  transfer.15 

9.  If  the  company  in  their  notice  of  allotment  annex  a  condition 
which  they  have  no  power  to  do,  it  will  be  regarded  as  such  a 
variation  *  of  the  contract  that  a  court  of  equity  will  not  interfere  to 
decree  specific  performance  of  the  original  contract.  As  when  the 
company  in  such  notice  require  the  allottee  to  sign  the  deed  of  set- 
tlement on  pain  of  forfeiture  of  the  shares,  when  the  constitution 
of  the  company  gave  no  such  power.16 

10.  The  learned  judge,  Lord  Chancellor    Westbury,  here  dis- 

11  N.  B.  &  Canada  L.  Co.  v.  Muggeridge,  4  Drew.  686 ;  Bog  Lead  Co.  v. 
Montague,  10  C.  B.  (N.  S.)  481 ;  s.  c.  8  Jur.  (N.  S.)  310. 

12  Garriek  v.  Taylor,  3  Law  T.  (N.  S.)  460.  And  this  will  be  so,  notwith- 
standing, by  the  rules  of  the  bank,  there  was  to  be  no  benefit  of  survivorship,  it 
appearing  to  have  been  the  purpose  of  the  deceased  to  have  her  share  go  to  the 
survivor.  Garriek  v.  Taylor,  29  Beav.  79;  7  Jur.  (N.  S.)  116,  affirmed  by 
Lords  Justices,  10  W.  R.  49. 

13  Harris  ex  parte,  29  Law  J.  Exch.  364 ;  s.  c.  5  H.  &  N.  809. 

14  Hare  v.  London  &  N.  W.  Railw.,  1  Johns.  (Eng.  Ch.)  722. 

15  Poole  v.  Middleton,  29  Beav.  646 ;  s.  c.  7  Jur.  (N.  S.)  1262. 

16  Oriental  I.  Steam  Co.  v.  Briggs,  2  Johns.  &  H.  625 ;  s.  c.  8  Jur.  (N.  S.) 
201. 

[*123] 


132 


TRANSFER    OF    SHARES. 


PART  II. 


sees  the  general  questions  involved,  and  concludes,  that  in  gen- 
eral the  cunt  will  specifically  enforce  a  contract  to  accept  of  shares 
in  a  joint-stock  company.  His  lordship  explains  much  at  length 
his  own  views  of  the  true  modus  operandi  in  effecting  contracts  by 
means  of  written  offers  and  acceptance,  and  concludes,  very  justly, 
we  think,  that  one  who  attempts  to  enforce  such  a  contract  must 
show  that  the  acceptance  on  his  part  was  prompt,  simple,  and  un- 
qualified :  and  that  where  new  conditions  are  made  in  the  accept- 
ance the  contract  will  not  be  regarded  as  closed  until  assent  is 
given  by  the  other  party,  either  expressly  or  by  fair  implication,  to 
such  conditions. 

11.  The  transfer  of  shares  intended  to  be  recorded  on  the  books 
of  the  company  should  contain  nothing  but  the  transfer  of  the  title. 
And  where  there  are  shares  in  different  companies  transferred 
between  the  same  parties  at  the  same  time,  it  will  be  more  con- 
venient to  have  a  separate  transfer  for  each  company.17  But  as  to 
the  mere  conveyance  of  title  between  the  parties,  one  conveyance 
e  Mifficient.  And  it  is  held  even  that  two  different  owners  may 
join  in  one  conveyance  to  the  same  person.18 


SECTION    III. 


Intervening  Calls,  or  Assessments. 


1.    Vi  ndor  must  pay  calls,  if  that  is  requisite 
in  pass  title. 

,  it  is  matter  of  construction,  and 
i  nee. 


n.  2.   Calls  paid  by   vendor 
transfer. 


after  executing 


|  34.  1.  It  has  been  said,  too,  that  the  contractor  to  transfer 
stock  must  see  to  it  that  all  calls  are  met,  up  to  the  time  of  the 
*  transfer,  as  in  general  the  charters  of  such  companies,  or  their 
by-laws,  prohibit  the  transfer  of  stock  while  calls  remain  unpaid.1 

17  Lord  Campbell,  C.  J.,  in  Reg.  v.  General  Cemetery  Co.,  6  E.  &  B.  415, 
419;  Copeland  V.  North  Eastern  R.  Co.,  id.  277. 

■  Wills©.  Bridge,  4  Exch.  193. 

1  Walford,  266,  257.  And  under  the  English  statute  8  Vict.  ch.  16,  §  16, 
providing  that  no  transfer  of  shares  shall  be  valid  until  he  shall  pay  any  call  due 
upon  such  shares,  or  upon  any  other  shares  held  by  him,  does  not  apply  to  the 
transfer  of  shares  upon  which  no  calls  are  due,  notwithstanding  the  transferror 

[*124] 


§  34.  INTERVENING   CALLS,   OR   ASSESSMENTS.  133 

But  we  have  seen  that  this  is  a  provision  for  the  protection  of 
the  company,  and  in  which  they  alone  are  interested,  and  which 
will  not  ordinarily  avoid  a  sale,  hetween  other  parties,  otherwise 
valid. 

2.  And  it  would  seem  that  the  question,  upon  which  party  the 
duty  to  pay  future  calls  shall  rest,  is  one  of  construction,  in  the 
absence  of  express  stipulation  ;  at  all  events,  one  of  intention.  It 
may  perhaps  be  safe  to  say  that  the  sale  of  stock,  in  the  present 
tense,  ordinarily  implies  that  it  is  free  from  incumbrance  of  any 
kind,  unless  there  is  some  exception  or  qualification  in  the  con- 
tract. And  that  may  be  the  common  presumption,  in  regard  to 
contracts  to  deliver  stock,  in  future.  But  in  the  latter  case  the 
presumption  is  not,  by  any  means,  of  so  conclusive  a  character  as 
in  the  former,  and  sometimes,  in  such  cases,  it  has  been  held  not 
incumbent  upon  the  seller  to  pay  intervening  calls.2 

may  hold  shares  not  fully  paid  up.  Hubbersty  v.  Mancb.,  Sbeff.  &  Lincolnsh. 
Railw.,  Law  Rep.  2  Q.  B.  59. 

2  Shaw  o.  Rowley,  16  M.  &  W.  810  ;  s.  g.  5  Railw.  C.  47.  In  this  case  it  was 
held  no  impediment  to  the  seller's  readiness  to  convey  the  shares,  that  he  had  not 
paid  an  intervening  call,  as  he  might  do  it  at  the  moment  of  executing  the  trans- 
fer, and  the  court  say  the  call  was  ultimately  to  be  paid  by  the  purchaser. 

In  Humble  v.  Langston,  7  M.  &  W.  517 ;  s.  c.  2  Railw.  C.  533,  it  is  decided, 
that  upon  the  sale  and  transfer  of  the  shares,  where  the  purchaser's  name  is  not 
substituted  on  the  register  of  the  company,  for  that  of  the  seller,  but  the  stock 
still  standing  in  his  name,  and  he  is  thereby  subjected  to  the  payment  of  future 
calls,  he  cannot  recover  the  money  of  the  purchaser,  because  there  is  no  implied 
contract  to  that  effect,  resulting  from  the  transaction.  This  is  certainly  a  most 
remarkable  decision,  and  it  is  something  of  a  task  to  be  able  to  read  the  opinion 
of  the  court,  by  which  this  result  is  reached,  with  tolerable  patience.  The  con- 
clusion is  certainly  not  fortified  either  by  reason  or  analogy. 

And  in  the  Cheltenham  &  Great  W.  Union  Railw.  Co.  v.  Daniel,  2  Q.  B.  281 ; 
S.  c.  2  Railw.  C.  728,  it  is  decided,  that  the  purchaser  of  shares  may,  by  way  of 
estoppel  in  pais,  be  made  liable  for  calls,  before  his  name  is  actually  substituted 
for  that  of  the  seller  upon  the  register  of  shares.  If  so,  both  parties  are  liable  for 
the  calls,  and  the  seller,  while  his  name  remains  upon  the  register,  is  the  mere 
surety  of  the  purchaser,  as  to  future  calls.  And  what  is  a  more  natural  or  neces- 
sary conclusion  in  the  mind  of  any  one  having  the  common  sense  of  justice,  than 
to  imply,  that  while  the  purchaser  suffers  the  seller's  name  to  remain  upon  the 
register,  and  liable  to  the  payment  of  calls,  through  his  neglect,  he  does  impli- 
edly promise  to  indemnify  him  against  all  loss  on  that  account  ?  See  Burnett  v. 
Lynch,  5  B.  &  C.  589. 

But  the  case  of  Humble  v.  Langston  is  reaffirmed  in  the  subsequent  case  of 
Sayles  v.  Blane,  6  Railw.  C.  79.  These  cases  can  only  be  accounted  for,  upon 
the  principle  of  discouraging  blank  unregistered  transfers,  which  have  the  effect 

[*124] 


134 


TRANSFER    OF    SHARES. 


PART  II. 


♦SECTION    IV. 


Transfer  by  Deed  in  Blank. 


ink  transfer  formerly  held  invalid  in 

r<  //'  in  America. 


4.  Deed  executed  in  blank  and  filled  by  pro- 
curation valid. 


.  1.  Ordinarily  the  transfer  of  stock,  or  a  contract  to  trans- 
tor,  i-;  not  required  to  be  in  any  particular  form.  All  that  is 
requisite,  is,  the  same  as  in  any  other  contract,  the  meeting  of  the 
minds  of  the  parties.  But  in  some  cases  the  shares  are,  by  the 
express  requirements  of  the  charter,  made  transferable  only,  by 
deed  executed  by  both  parties  to  the  transfer. 

2.  And  in  such  case  it  was  considered,  that  a  deed  executed  by 
tin'  seller,  with  a  blank  for  the  name  of  the  transferee,  was  no  com- 
pliance with  the  statute.1  The  opinion  of  the  court  seems  to  rest 
*  upon  the  early  cases,  in  which  it  is  held  that  the  party  cannot 
effectually  execute  a  deed,  leaving  such  important  blanks  as  the 
name  of  the  grantee,  or  obligee,  while  it  is  considered  that  less  im- 
portant ones,  like  the  date,  etc.,  may  be  supplied,  after  the  execu- 

to  evade  the  -tamp  duties.     Shelford,  108,  and  Report  on  Railw.  1839,  No.  517, 
p.  I. 

Since  writing  tin-  above,  the  later  case  of  Walker  v.  Bartlett,  18  C.  B.  815  ;  s.  c. 
A:  Eq.  368,  has   come  to  hand,  where  a  blank  transfer  seems  to  be 
regarded  as  perfectly  valid,  and  that  the  transfer  in  this  mode  does  impose  upon  the 
vendee  the  duty  of  paying  calls  upon  the  shares,  while  they  remain  his  property. 
i  i_\  be  allowed  to  say,  that  this  result  ©f  the  English  decisions,  upon  this  sub- 
ject, is  not  altogether  without  gratification,  as  the  former  decisions  had  so  effectu- 
ally mystified  the   subject,  that  it  seemed  not  improbable  that  the   difficulty  of 
comprehending  them  might  very  likely  be  ultimately  found  with  ourselves,  rather 
than    at  the   door  of  the  eminent  jurists,  who  have  so  long  clung  to  the  now 
acknowledged  inconsistency  of  Humble  v.  Langston,  which  pertinacity  in  error, 
il  thing,  is  far  more  uncommon  in  Westminster  Hall  than  with  courts 
of  Less  experience.     But  it  is  probably  on  the  ground  of  authority.     Men  of  the 
learning  and  experience  of  the  English  judges,  generally  feel  that  they  can  afford 
to  acknowledge  their  common  share  of  human  fallibility,  without  serious  pre- 
judice, when  the  proper  time  coin  s  for  doing  so. 

1  Hibblewhite  v.  M'Morine,  2  Railw.  C.  51 ;  s.  c.  6  M.  &  W.  200.   It  is  con- 
Bidered  thai  two  or  more  several  owners  of  shares  may  join  in  one  deed  to  convey 
their  shares.     Wills  v.  Bridge,  4  Exch.  193;  Enthoven  v.  Hoyle,  13  C.  B.  373; 
•      I  Eng.  L.  &  Eq.  134.     See  ante,  §  34,  n.  2. 
[*125,  126] 


§  35.  TRANSFER  BY  DEED  IN  BLANK.  135 

tion,  by  permission  of  the  party  executing  the  same.  This  seems 
to  have  been  the  undoubted  rule  of  the  English  law,  from  the 
authorities  cited,  in  the  last  case. 

3.  But  it  seems  to  be  rather  technical  than  substantial,  and  to 
found  itself  either  in  the  policy  of  the  stamp  duties,  or  the  supe- 
rior force  and  sacredness  of  contracts  by  deed,  both  of  which  have 
little  importance  in  this  country.  And  the  prevailing  current  of 
American  authority,  and  the  practical  instincts,  and  business 
experience  and  sense  of  our  people,  are  undoubtedly  otherwise. 

4.  There  is  no  good  reason  why  one  should  not  be  as  much 
bound  by  a  deed  executed  in  blank,  and  filled  according  to  his 
directions,  as  by  a  blank  acceptance  or  indorsement,  of  a  bill,  or 
note,  and  accordingly  we  find  a  large  number  of  decisions  of  the 
American  courts  leading  in  that  direction.2 

2  Stahl  v.  Berger,  10  S.  &  R.  170 ;  Sigfried  v.  Levan,  6  id.  308 ;  Wiley  v. 
Moor,  17  id.  438  ;  Ogle  v.  Graham,  2  Penn.  132  ;  Woolley  v.  Constant,  4  Johns. 
54,  60;  ex  parte  Kerwin,  8  Cow.  118;  Boardman  v.  Gore  et  al.,  15  Mass.  331. 

And  the  following  certainly  incline  in  the  same  direction.  Smith  v.  Crooker, 
5  Mass.  538,  and  the  opinion  of  Parsons,  C.  J.;  Hunt  v.  Adams,  6  id.  519; 
Warring  v.  Williams,  8  Pick.  326  ;  Adams  v.  Frye,  3  Met.  103 ;  Bank  of  Com- 
monwealth v.  Curry,  2  Dana,  142;  Bank  v.  McCbord,  4  id.  191;  Johnson  v. 
Bank  of  the  United  States,  2  B.  Monroe,  310 ;  Camden  Bank  v.  Halls,  2  Green, 
583  ;  Duncan  v.  Hodges,  4  M'Cord,  239. 

In  the  London  &  Brighton  Railw.  Co.  v.  Fairclough,  2  Man.  &  Gr.  674;  s.  c. 
2  Railw.  C.  514,  the  deed  of  transfer  where  one  name  was  first  inserted,  as  trans- 
feree, and  subsequent!}'  that  erased,  and  another  inserted,  and  the  deed  re-exe- 
cuted, by  the  vendor,  was  held  void,  because  it  had  not  been  restamped.  Post, 
§§  239,  241. 

An  auctioneer,  who  sells  shares  at  public  auction  without  disclosing  the  name 
of  his  principal,  makes  himself  personally  responsible  for  the  fulfilment  of  the 
contract  of  sale.     Franklyn  v.  Lamond,  4  C.  B.  637  ;  Hodges  on  Railways,  119. 

But  where  one  borrowed  money,  and  deposited  certificates  of  railway  shares, 
with  blank  assignments  upon  them,  as  security,  and  the  blanks  were  not  filled  up 
till  the  shareholder  .became  bankrupt,  it  was  held  that  the  depositary  had  a  lien 
upon  the  shares,  for  money  advanced  by  him,  or  paid  on  calls  upon  the  shares. 
Dobson  ex  parte,  2  Mont.  D.  &  De  G.  685.  And  railway  bouds  issued  with 
the  name  of  the  obligee  blank,  were  held  negotiable  in  that  form,  although  not 
in  terms  negotiable ;  and  that  any  holder  for  value,  before  the  blanks  were  filled, 
might  maintain  an  action  in  his  own  name  against  the  company.  Chapin  r.  Ver- 
mont &  Mass.  Railw.,  8  Gray,  575.  See,  also,  White  v.  Vt.  &  Mass.  Railw., 
21  How.  (U.  S.)  575. 

[*126] 


136 


TRANSFER    OF    SHARES. 


PART  II. 


♦SECTION    V. 


v         >'  spurious  Shares.  —  Rules  of  Stock  Exchange. 


bona  fide,  must  refund 
money. 
a.  1.  Discussion  of  the  extent  of  implied 
warranty. 


'.',.  No  implied  warranty  in  such  case,  which 
will  entitle  the  vendee  to  special  damage. 

4  ;j-  n.  4.  Rule  of  the  stock-exchange,  made 
after  the  sate,  not  binding  upon  parties. 
How  far  such  rules  bind  parties. 


§  36.  1.  Where  one  employed  a  share-broker  to  sell  in  the  mar- 
ket what  purported  to  be  scrip  or  certificates  of  shares  in  a  pro- 
jected railway  company,  which  subsequently  proved  to  have  been 
forged,  and  the  broker  paid  the  price  at  which  he  sold  them  to  the 
defendant,  but  being  called  upon  by  the  purchaser  to  make  good 
the  loss,  repaid  the  money,  and  a  further  sum,  according  to  a  reso- 
lution of  the  committee  of  the  stock-exchange,  as  to  the  value  of 
genuine  shares  in  the  same  railway  company,  which  resolution  was 
passed  after  the  sale  of  the  spurious  shares;  the  defendant  declin- 
ing to  pay  this  further  sum,  the  broker  brought  an  action,  claiming 
to  recover,  as  upon  a  warranty,  that  the  shares  were  genuine,  with 
a  count  for  money  paid.1 

1  Hodges,  4th  ed.  (1865).  This  writer  thus  defines  the  rule:  "If  a  share- 
broker,  directed  to  buy  shares,  buys  what  is  ordinarily  bought  and  sold  in  the 
stock-market  as  shares,  he  has  fulfilled  his  commission,  and  cannot  be  made 
responsible  for  the  fraud   or   misconduct  of  parties,  who  may  have  issued  the 

pea  without  authority.  There  is  no  warranty  or  undertaking,  on  the  part  of 
the  broker  employed  to  buy  shares  or  scrip,  that  the  article  which  merely  passes 
through  his  hands  is  any  thing  more  than  what  it  purports  on  its  face  to  be,  and 
what  it  is  generally  understood  to  be  in  the  market.  Addison  on  Cont.  5th  ed. 
191.  But  if  a  broker  sell  stock-shares  or  debentures  for  an  undisclosed  principal, 
and  sign  the  sold  note,  he  is  responsible  for  any  loss  sustained  by  the  purchaser, 
through  the  fraud  of  the  undisclosed  principal,  although  the  purchaser  knew 
thai  he  waa  dealing  with  a  broker.  Carr  v.  Royal  Exchange  Insurance  Co.,  5 
B.  &  S.  G'iG;  s.  c.  nam.  Royal  Exchange  Insurance  Co.  v.  Moore,  11  Weekly 
Rep.  592. 

We  know  of  no  good  reason  why  the  vendor  of  shares  in  a  joint-stock  com- 
pany  Bhould  not  lie  held  responsible  for  the  genuineness  of  the  article  the  same 
a-  any  other  vendor.  It  may  not  follow  that  either  of  the  brokers  of  the  con- 
tracting parties  could  be  so  held,  since,  in  general,  they  act  merely  in  a  repre- 
sentative capacity.  lint  the  ultimate  vendor  must  be  responsible  upon  an  implied 
warranty  to  that  extent .  And  as  was  held,  in  the  last  case  cited,  if  the  broker  with- 
holds the  name  of  his  principal  he  thereby  assumes  that  responsibility,  personally. 

[*127] 


§36.     SALE  OP  SPURIOUS  SHARES.  —  RULES  OP  STOCK  EXCHANGE.     137 

*  2.  Upon  the  latter  count  the  defendant  paid  into  court  the 
money  received  upon  the  original  sale,  with  interest. 

3.  It  was  held,  the  plaintiff  could  not  recover  upon  the  ground 
of  the  warranty,  there  being  no  promise,  express  or  implied,  that 
the  certificates  were  genuine ;  and  that  under  the  other  count  he 
could  only  recover  the  money  paid  defendant. 

4.  It  was  also  held,  that  the  resolution  of  the  committee  of  the 
stock-exchange,  made  after  the  transaction  was  completed,  however 
it  might  bind  the  members  of  that  body,  could  not  affect  the  defend- 
ant.2 There  has  been  considerable  discussion  in  the  English  courts, 
as  we  have  seen,  in  regard  to  the  binding  effect  of  a  rule  of  the 
stock-exchange,  by  which  the  purchasing  broker  of  shares  is  held 
entitled  at  the  settling  day,  in  case  of  the  purchase  of  shares,  to 
bring  forward  a  responsible  party  to  whom  the  shares  are  to  be  trans- 
ferred, and  thus  exonerate  himself  from  any  further  responsibility 
in  the  matter;  the  seller  being  bound  to  look  to  the  party  to  whom 
the  shares  are  thus  transferred  for  indemnity  against  future  calls, 
provided  the  company  shall  decline  to  register  the  transfer.  The 
Court  of  Common  Pleas,3  Byles  dissenting,  held  the  custom  not 
reasonable,  and  of  no  force.  But  this  judgment  was  reversed  in 
the  Exchequer  Chamber,4  where  the  custom  was  held  entirely  rea- 

2  Westropp  v.  Solomon,  8  C.  B.  345.  We  think  it  probable  that  the  cases, 
in  this  country,  would  be  regarded  as  favoring  the  view,  that  upon  a  sale  of  this 
kind  there  is  an  implied  warranty  that  the  article  is  what  it  purports  to  be,  and, 
consequently,  that  the  seller  is  liable  to  pay  its  value  in  the  market  at  the  time 
its  spuriousness  is  discovered.  But  see  cases  collected  post,  §  235.  It  would 
seem  that  in  England  it  is  an  indictable  offence  for  persons  to  conspire  to  fab- 
ricate shares,  in  addition  to  the  limited  number  of  shares  of  which  a  company  con- 
sists, in  order  to  sell  them  as  good  shares,  notwithstanding  any  imperfection  in 
the  original  formation  of  the  company.  Rex  v.  Mott,  2  C.  &  P.  521 ;  post, 
§  37,  n.  3. 

3  Grissell  v.  Bristowe,  Law  Rep.  3  C.  P.  112. 

4  Same  case,  Law  Rep.  4  C.  P.  36.  It  seems  from  this  case,  and  that  of  Tor- 
rington  v.  Lowe,  Law  Rep.  4  C.  P.  26,  that  the  seller  has  no  remedy,  after  he 
accepts  the  purchaser,  against  any  other  party.  But  he  is  not  obliged  to  accept 
him,  unless  he  is  ready  to  pay  the  price  and  is  a  responsible  party.  Kelly,  C.  B., 
in  Exchequer  Chamber,  p.  51.  But  where  the  broker  offers  the  name  of  a  non- 
resident foreigner,  the  other  party  is  not  obliged  to  accept  him  as  the  purchaser ; 
and,  on  his  refusal  to  do  so,  the  broker  will  remain  personally  responsible  to  his 
customer,  not  having  offered  the  name  of  a  purchaser  against  whom  no  reason- 
able objection  could  be  made.  Allen  v.  Graves,  L.  R.  5  Q.  B.  478.  In  the 
very  recent  case  (1872)  of  Mollett  v.  Robinson,  L.  R.  7  C.  P.  84;  s.  C.  20  W. 
R.  544,  the  effect  of  custom  in  regard  to  a  particular  trade,  in  a  particular  city, 

[*128] 


L38 


TRANSFER    OF    SHARES. 


PART  II. 


Bonable  and  binding.     The  courts  could  scarcely  pronounce  so 
convenient  and  universal  a  custom  to  be  unreasonable. ' 


SECTION    VI. 


/,',  adhtess  to  perform.  —  Custom  and   Usage. 


1.    J ',  ndor  must  be  ready  and  offer  to  convey. 
2     I       '■  <  'mis'  be  ready  to  pay  price. 

"cal  usage. 


4.  The  party  taking  the  initiative  must  pre- 
pare the  writings. 

n.  3.  Oral  evidence  to  explain  memoranda  of 
contract. 


£  37.  1.  The  obligation  resting  upon  the  vendor  of  railway 
shares  is  to  have,  at  the  time  specified  in  the  contract  for  delivery, 
a  good  title  to  the  requisite  number  of  shares,  and  to  manifest  bis 
readiness  to  convey,  which  is  usually  done  by  tendering  the  proper 
conveyance.  But  this  is  not  necessary.  Any  other  mode  of  show- 
ing readiness  is  sufficient.1 

2.  The  corresponding  obligations  upon  the  vendee  are  readiness 
to  receive  the  proper  conveyance,  at  the  specified  time  and  *  place, 
and  to  pay  the  price,  and  it  would  seem  to  prepare  a  proper  con- 
veyance, and  tender  the  same  for  execution,  upon  having  a  -good 
title  made  out.2 

in  binding  persons  not  resident  at  that  place  or  shown  to  be  cognizant  of  the  cus- 
tom, is  very  extensively  discussed,  in  the  Exchequer  Chamber,  by  six  of  the 
judges,  who  were  equally  divided  on  the  point,  and  who  therefore  gave  separate 
opinions.  In  Masted  v.  Paine,  L.  R.,  in  Exchequer  Chamber,  6  Exch.  132 ;  s.  c. 
&  id.  203,  the  question  of  the  effect  of  the  seller  having  accepted  such  a  pur- 
» chaser  as  tin;  broker  offers,  although  not  responsible  for  indemnifying  against 
future  <alls,  is  extensively  discussed,  and  all  the  cases  carefully  reviewed,  by  the 
different  judges  who  gave  opinions,  and  the  conclusion  reached,  that,  although 
the  seller  may  not  be  bound  to  accept  an  irresponsible  person  as  purchaser,  still, 
il  lie  do  accept  such  person,  he  cannot  compel  the  broker  to  indemnify  him 
insl  loss.  See  also  Coles  v.  Bristowe,  L.  R.  6  Eq.  149;  8.  c.  4  Ch.  App.  3; 
Bowring  v.  Shepherd,  L.  R.6  Q.  B.  309;  ante,  §  33,  pi.  4  and  n. 

1  Bumble  v.  Langston,  7  M.  &  W.  517;  s.  c.  2  Railw.  C.  533;  Hannuic  v. 
Goldner,  1  1  M.  &  W.  849;  Hare  v.  Waring,  3  M.  &  W.  362;  Hibblewhite  v. 
fcTMorine,  2  Railw.  C.  51.  In  Munn  v.  Barnum,  24  Barb.  283,  it  is  held  that 
men-  readiness  to  transfer  is  sufficient  in  such  cases,  and  that  an  actual  transfer 
is  never  requisite,  where  the  purchaser  declines  to  pay  the  price. 

2  Lawrence  v.  Knowles,  5  Bing.  (X.  C.)  399;  Stephens  v.  De  Medina,  4  Ad. 
&E1.  (X.  S.)   122;  Bowlby  v.  Bell,  4  Railw.  C.  692. 

[*129] 


§  37.  READINESS   TO   PERFORM.  —  CUSTOM    AND   USAGE.  139 

3.  But  the  incidents  of  such  contracts  are  liable  to  be  controlled 
by  general  and  local  customs,  and  usages  of  trade,  the  same  as 
other  similar  contracts.3    Hence  any  general  known  usage  of  those 

3  Stewart  v.  Cauty,  2  Raihv.  C.  616 ;  8  M.  &  W.  160.  And  one  who  employs 
a  share-broker,  at  a  particular  place,  to  purchase  shares,  is  bound  by  a  usage, 
affecting  the  broker,  at  that  particular  place.  As  where  the  plaintiff,  a  share- 
broker  in  Leeds,  bought  for  defendant  ten  railway  shares  to  be  paid  for  on 
delivery.  The  defendant  not  being  ready  to  pay  the  money,  the  vendor  made  a 
resale,  at  a  less  price,  and  called  upon  the  plaintiff  for  the  difference,  which  he 
paid  without  communicating  with  defendant,  all  which  was  done  according  to  the 
custom  of  the  Leeds  stock-exchange.  It  was  held  the  plaintiff  might  recover  of 
defendant  the  difference,  in  an  action  for  money  paid.  Pollock  v.  Stables,  5 
Railw.  C.  352 ;  s.  c.  12  Q.  B.  765. 

And  where  shares  had  been  purchased  by  a  stock -broker,  upon  which  a  call 
had  been  made,  but  not  then  due,  by  the  rules  of  the  stock-exchange  it  was  the 
duty  of  the  vendee  to  pay  the  call,  the  vendor  having  paid  it,  to  enable  him  to 
convey,  the  broker  paid  the  amount  to  him,  and  it  was  held  he  might  recover  it 
of  the  vendee,  as  money  paid  for  his  use.  Bayley  v.  Wilkins,  7  C.  B.  886.  And 
it  would  seem  the  party  is  bound  by  such  usage,  though  not  cognizant  of  it. 
Parke  and  Eolfe,  BB.,  in  Bayliffe  v.  Butterworth,  1  Exch.  425;  s.  c.  5  Railw.  C. 
283 ;  Sutton  v.  Tatham,  10  A.  &  E.  27. 

And  where  the  broker  could  not  obtain  the  certificate  of  shares  for  some 
months,  on  account  of  the  delay  in  having  them  registered  by  the  company,  and 
in  the  mean  time  a  call  was  made  which  he  paid,  the  person  for  whom  he  pur- 
chased, having,  from  time  to  time,  urged  the  forwarding  of  the  scrip  without 
delay,  it  was  held  that  he  could  not  repudiate  the  contract,  and  recover  the  money 
advanced  to  the  broker  to  pay  the  price  of  the  purchase.  McEwen  v.  Woods, 
11  Q.  B.  13;  5  Railw.  C.  335. 

And  where  the  defendant  gave  the  plaintiff,  a  broker  on  the  stock-exchange,  an 
order  to  purchase  for  him  fifty  shares  in  a  foreign  railway  company,  at  a  time  when 
no  shares  of  the  company  were  in  the  market,  or  had  in  fact  issued,  but  letters  of 
allotment  were  then,  according  to  the  evidence  of  persons  on  the  stock-exchange, 
commonly  bought  and  sold  as  shares,  and  the  plaintiff  bought  for  the  defendant  a 
letter  of  allotment  of  fifty  shares,  it  was  held  that  a  jury  might  well  find  that  this 
was  a  good  execution  of  the  order.  Mitchell  v.  Newhall,  15  M.  &  W.  308 ;  s.  c. 
4  Railw.  C.  300. 

And  where  the  broker  bought  scrip  certificates,  which  were  sold  in  the  mar- 
ket, as  "  Kentish  Coast  Railway  Scrip,"  and  were  signed  by  the  secretary  of  the 
company,  but  which  were  afterwards  repudiated  by  the  directors,  as  having  been 
issued  by  the  secretary,  without  authority,  in  an  action  to  recover  back  from  the 
broker  the  price  paid  him  by  the  plaintiff  for  the  scrip,  and  his  commissions,  on 
the  ground  of  its  not  being  genuine,  it  was  held  that  the  proper  question  for  the 
jury  was,  whether  what  the  plaintiff  intended  to  buy  was  not  that  which  went  in 
the  market  as  "  Kentish  Coast  Railway  Scrip,"  there  being  no  other  form  of  that 
scrip  in  the  market  at  the  time.  Lamert  v.  Heath,  15  M.  &  W.  486 ;  s.  c.  4 
Railw.  C.  302 ;  ante,  §  36. 

The  remarks  of  Lord  Campbell,  C.  J.,  in  the  case  of  Humfrey  v.  Dale,  7  El. 

[*129] 


140  TRANSFER  OF  SHARES.  PART  II. 

•negotiating  similar  business,  and  which  may  be  fairly  presumed 
to  have  been  known  to  the  parties,  or  which  ought  to  have  been, 
and  *  any  local  custom,  or  usage  of  trade,  which  was  in  fact  known 

&  Bl>  266,  20  Law  Rep.  227,  in  regard  to  the  necessity  of  relaxing  the  rule  of 
the  admissibility  of  oral  evidence  to  explain  the  import  of  commercial  terms  and 
memoranda  in  written  contract-  between  merchants  and  business  men,  are  cer- 
tainly  worthy  of  his  lordship's  eminent  reputation  for  wisdom  and  learning:  — 

••  The  only  remaining  question  is,  having  stated  a  purchase  for  a  third  person 
..-  principal,  is  there  evidence  on  which  they  themselves  can  be  made  liable? 
Now  neither  collateral  evidence,  nor  the  evidence  of  a  usage  of  trade,  is  receiv- 
able to  prove  any  thing  which  contradicts  the  terms  of  a  written  contract;  but 
subject  to  this  condition  both  may  be  received  for  certain  purposes.  Here  the 
plaintiff  did  not  seek,  by  the  evidence  of  usage,  to  contradict  what  the  tenor  of 
the  note  primarily  imports;  namely,  that  this  was  a  contract  which  the  defend- 
ants made  as  brokers.  The  evidence,  indeed,  is  based  on  this.  But  the  plaintiff 
seeks  to  show  that,  according  to  the  usage  of  the  trade,  and  as  those  concerned 
in  the  trade  understand  the  words  used,  they  imported  something  more ;  namely, 
that  if  the  buying  broker  did  not  disclose  the  name  of  his  principal,  it  might 
become  a  contract  with  him,  if  the  seller  pleased.  The  principle  on  which  evi- 
dence  is  admissible  is,  that  the  parties  have  not  set  down  on  paper  the  whole  of 
their  contract  in  all  its  terms,  but  those  only  which  were  necessary  to  be  deter- 
mined in  the  particular  case  by  specific  agreement,  and  which  of  course  might 
vary  infinitely,  leaving  to  implication  and  tacit  understanding  all  those  general 
and  unvarying  incidents  which  an  uniform  usage  would  annex,  and  according  to 
which  they  must  in  reason  be  understood  to  contract,  unless  they  expressly  ex- 
clude them.  To  fall  within  the  exception,  therefore,  of  repugnancy,  the  incident 
must  be  such  as,  if  expressed  in  the  written  contract,  would  make  it  insensible  or 
inconsistent.  Brown  v.  Byrne,  3  El.  &  Bl.  703.  [After  alluding  to  several  cases, 
especially  Trueman  v.  Loder,  11  Ad.  &  El.  589,  in  which  case  is  found  a  dictum 
adverse  to  admissibility  of  this  evidence,  the  learned  judge  continued  :]  We  may 
refer  to  Eodson  v.  Davies,  2  Camp.  530,  not  as  a  legal  decision  opposed  to 
Truman  v.  Loder,  —  for  Lord  Denman,  in  his  judgment  in  the  latter  case,  showed 
that  it  could  not  lie  supposed  to  carry  with  it  the  weight  of  Lord  Ellenborougli's 
decision,  —  but  because  both  cases,  we  think,  disclose  how  entirely  the  minds  of 
lawyers  are  under  a  different  bias  from  that  which,  in  spite  of  them,  will  always 
influence  the  practice  of  traders  which  creates  the  usage  of  trade.  Lawyers  de- 
sire certainty,  ami  would  have  a  written  contract  express  all  its  terms,  and  desire 
that  no  parol  evidence  beyond  it  should  be  receivable;  but  merchants  and  tra- 
ders, with  a  multiplicity  of  contracts  preparing  on  them,  and  meeting  each  other 
daily,  desire  to  write  little,  and  leave  unwritten  what  they  take  for  granted  in 
every  contract.  It  is  the  business  of  courts  reasonably  to  shape  these  rules  of 
evidence  so  as  to  make  them  suitable  to  the  habits  of  mankind,  and  such  as  are 
not  likely  to  exclude  the  actual  facts  of  the  dealings  between  parties,  when  they 
are  to  determine  on  the  controversies  which  grow  out  of  them.  The  rule  to  enter 
a  nonsuit  must  be  discharged."  See  Taylor  v.  Stray,  29  Law  Times,  95;  s.  c. 
2  I  .11.  (N.  S.)  175. 

[*130,  131] 


§  37.  EEADINESS   TO    PERFORM.  —  CUSTOM    AND   USAGE.  141 

to  both  parties,  is  regarded  as  if  incorporated  into  the  contract,  the 
parties  being  presumed  to  have  contracted  with  reference  to  it.3 
But  it  may  be  questionable,  perhaps,  whether  the  custom  in 
regard  to  sales  of  stock,  in  this  country,  would  require  the  pur- 
chaser to  be  at  the  sole  expense  of  preparing  the  proper  con- 
veyance. 

4.  It  is  safe,  perhaps,  to  say,  that  the  party  tendering  a  convey- 
ance, or  he  who  demands  it,  in  practice,  ordinarily  causes  the 
instrument,  required  to  be  executed,  to  be  prepared  in  the  one 
case  and  executed  in  the  other.  But  less  will  often  suffice,  where 
the  other  party  refuses  to  proceed.4 

4  Walford,  262,  note,  where  it  is  said,  "  It  would  seem,  that  if  the  vendor 
fails  to  make  out  a  title,  this  dispenses  with  a  tender  of  conveyance."  But  if 
stock  is  to  be  delivered  on  demand,  it  is  necessary  to  show  an  actual  request  to 
deliver,  in  order  to  sustain  an  action  for  non-delivery.  Green  v.  Murray,  6  Jur. 
728.  Where  the  contract  is  to  deliver  stock  in  a  reasonable  time,  or  no  time 
being  specified,  which  the  law  regards  as  in  a  reasonable  time,  or  on  or  before 
a  day  named,  it  is  presumed  each  party  is  entitled  to  the  whole  time  in  which  to 
perform.  Stewart  v.  Cauty,  2  Railw.  C.  616 ;  s.  c.  8  M.  &  W.  160.  It  seems 
that  where  the  deed  of  settlement  required  the  consent  of  the  directors  to  the 
validity  of  the  transfer  of  shares,  it  is  incumbent  upon  the  vendor  to  obtain  such 
consent ;  and  where  the  transfer  was  duly  made,  executed,  and  delivered,  and 
the  money  for  the  price  paid,  but  the  directors  refused  to  give  their  assent,  it  was 
held  the  purchaser  might  recover  back  the  money  paid,  and  that  the  return  of  the 
transfer  was  collateral  to  the  contract  of  purchase,  and  not  a  condition  precedent 
to  the  plaintiff's  right  to  recover.     Wilkinson  v.  Lloyd,  7  Q.  B.  27. 

And  where  the  charter  of  the  company  or  the  statute,  prohibits  the  transfer  of 
the  shares  while  calls  remain  due,  it  has  been  held  that  a  deed  of  transfer  made, 
while  calls  remained  unpaid,  was  altogether  null  and  void,  so  that  the  company 
may  refuse  to  register  such  a  transfer,  although  the  calls  have  been  subsequently 
paid.  It  is  said  it  would  be  necessary  to  re-execute  the  deed,  after  the  payment 
of  the  calls,  before  the  company  could  be  compelled  to  register  it.  Hodges,  121, 
122.  But  it  has  been  said,  that  if  a  deed  be  delivered  as  an  escrow  in  such  case, 
to  take  effect  when  the  calls  are  paid,  it  may  be  good.  Patteson,  J.,  in  Hall  v. 
Norfolk  Estuary  Co.,  7.  Railw.  Cas.  503 ;  s.  c.  8  Eng.  L.  &  Eq.  351.  As  to  the 
binding  effect  of  the  usages  of  the  stock-exchange,  see  Maxted  v.  Paine,  17  W. 
R.  886 ;  ante,  §  36,  pi.  4,  and  n.  4. 

[*131] 


142  TRANSFER   OP   SHARES.  PART  II. 

♦SECTION     VII. 

Damages. —  Specific  Performance. 

1.  Damages,  difference  between  contract  price  I  2.  Equity  will  decree  specific  performance  of 

and  price  at  time  of  delm  ry.  contract  for  sale  of  shares. 

*§  38.  1.  The  damages  which  either  party  is  entitled  to  recover, 
is  the  difference  between  the  contract  price  and  the  market  price, 
at  the  time  for  delivery,  or,  in  some  cases,  a  reasonable  time  after, 
which  is  allowed  either  party  for  resale  or  repurchase.1 

2.  And  a  court  of  equity  will  decree  a  specific  performance  of 
a  contract  to  transfer  railway  shares,  but  not  for  the  transfer  of 
stock  in  the  funds,  as  any  one  may  always  obtain  that  in  the 
market,  but  railway  stock  is  not  always  obtainable.2     This  sub- 

1  Barned  v.  Hamilton,  2  Raihv.  C.  624;  Humble  v.  Mitchell,  11  Ad.  &  El. 
205;  s.  c.  2  Railw.  C.  70;  Shaw  v.  Holland,  15  M.  &  W.  136.  But  the  pur- 
chaser is  not  entitled  to  recover  any  advance  in  the  market  price  of  such  shares, 
after  a  reasonable  time  for  repurchase.  Tempest  v.  Kilner,  2  C.  B.  300 ;  s.  c. 
3  C.  B.  249.  See  also  Pott  v.  Flather,  5  Railw.  C.  85  ;  Williams  v.  Archer,  id. 
289 ;  s.  c.  5  C.  B.  318.  But  a  broker  is  not  entitled  to  commissions  unless  he 
complete  the  sale,  but  may  be  entitled  to  reimbursement  of  actual  expenses. 
Durkee  v.  Vermont  Central  Railway,  29  Vt.  127.  In  a  case  in  the  Com- 
mon Pleas,  Lo  e  v.  Kekule,  3  C.  B.  (X.  S.)  128;  s.  c.  30  Law  Times,  64, 
it  was  decided,  in  regard  to  the  subject  of  damages  for  breach  of  contract, 
by  delivery  of  an  inferior  article,  that  if  the  article  was  one  that  could  be 
immediately  sold  in  the  market,  the  rule  was,  the  difference  between  the  market 
value  of  the  article  delivered  and  that  contracted  for.  But  where  the  article 
cannot  be  immediately  resold,  as  where  the  resale  is  delayed  by  the  defendant, 
the  measure  of  damages  is  the  difference  between  the  value  of  the  article  con- 
tracted for,  at  the  time  and  place  of  delivery,  and  the  amount  made  by  the 
resale,  within  a  reasonable  time  of  the  delivery  of  the  article.  See  also  Rand 
r.  White  Mountain  Railw.,  40  N.  H.  79.  It  is  here  said  that  such  a  contract 
creates  no  debt,  attachable  by  process  of  foreign  attachment,  but  is  merely  a 
claim  for  unliquidated  damages.  And  see  Hager  v.  Reed,  11  Ohio  (N.  S.),  626, 
where  the  general  question  of  the  enforcement  of  contracts  to  transfer  stock  is 
idered,  and  the  effect  of  judgment  for  the  price  without  an  actual  transfer 
or  an  order  of  court  therefor. 

-  Duncuft  v.  Albrecht,  12  Simons,  189;  Shaw  v.  Fisher,  2  De  G.  &  S.  11 ; 

s.  c.  5  Railw.  ('.  461.      Leach  v.  Fobes,  11  Gray,  506.     There  has  been  the 

most  controversy  in  the  English  courts  of  equity  as  bearing  upon  the  question  of 

decreeing   specific  performance  of  contracts  to  transfer  shares  in  joint-stock 

[*132] 


§  38.  DAMAGES.  —  SPECIFIC    PERFORMANCE.  143 

ject  *  has  been  largely  discussed  in  the  English  Court  of  Chancery 
Appeal,3  and  the  same  rule  declared,  which  is  stated  above.     But 
in  that  case  the  plaintiff  failed  to  obtain  a  decree,  for  the  reason 
that  he  had  already  conveyed  the  stock  to  the  defendant's  vendee, 
in  ignorance  that  the  defendant  was  the  real  purchaser ;  and  the 
matter  having  lain  by  for  a  whole  year,  it  now  seemed  impossible 
to  say  that  the  plaintiff  had  made,  or  could  make,  good  title  to  the 
stock,  which  is  always  an  insuperable  barrier  to  a  decree  for  spe- 
cific performance.     A  later  case  upon  the  subject  in  the  English 
Court  of  Chancery  Appeal  holds,  that  an  agreement  to  accept  a 
transfer  of  railway  shares,  on  which  nothing  had  been  paid,  was 
not  nudum  pactum,  but  a  contract  which  may  be  specifically  en- 
forced in  equity.     Lord   Chelmsford,  chancellor,  in  delivering  his 
judgment,  quotes  with  approbation  the  words  of  the  Vice-Chan- 
cellor of  England,  in  Duncuft  v.  Albrecht.     "  There  is  not  any  kind 
of  analogy,"  said  that  learned  judge,  "  between  a  quantity  of  three 
per  cent,  or  any  other  stock  of  that  description,  (which  is  always 
to  be  had  by  any  person  who  choses  to  apply  for  it  in  the  mar- 
ket,) and  a  certain  number  of  railway  shares  of  a  particular  de- 
scription, which  railway  shares  are  limited  in  number,  and  which 
are  not  always  to  be  had  in  the  market."     We  regard  this  as  the 
latest  authoritative  declaration  of  the  English  equity  courts  upon 
the  subject.4     So  it  was  held,  that  a  court  of  equity  will  decree 
a  specific  performance  against  a  railway  company  of  a  contract  to 
take  land  and  pay  a  stipulated  price.5 

companies,  upon  tbe  point  of  the  sufficiency  of  the  proof.     See  Parish  v.  Parish, 
32  Beav.  207  ;  Bermingham  v.  Sheridan,  33  Beav.  660 ;  s.  c.  10  Jur.  (N.  S.)  415. 

3  Shaw  v.  Fisher,  5  De  G.,  M.  &  G.  596 ;  Sullivan  v.  Tuck,  1  Md.  Ch.  Dec. 
59,  id.  112;  McGowin  v.  Remington,  12  Penn.  St.  56.  See,  also,  upon  the 
subject  of  specific  performance  in  courts  of  equity,  Adams,  Eq.  (ed.  1859) 
77-91,  and  cases  cited;  Carpenter  v.  Ins.  Co.,  4  Sandf.  Ch.  408;  Lowry  v. 
Muldrow,  8  Rich.  Eq.  241. 

4  Cheale  v.  Kenward,  3  De  G.  &  J.  27.  There  has  been  a  similar  decision 
by  the  Supreme  Court  of  Massachusetts.  Leach  v.  Fobes,  11  Gray,  506 ;  s.  p. 
Todd  v.  Taft,  7  Allen,  371. 

5  Inge  v.  Birmingham  W.  &  S.  V.  Railway  Co.,  3  De  G.,  M.  &  G.  658 ;  s.  c. 
23  Eng.  L.  &  Eq.  601 ;  post,  §  213.  So  also  in  their  favor,  Old  Colony  Railw. 
v.  Evans,  6  Gray,  25.  And  the  fact  that  the  price  of  shares  has  unexpectedly 
fallen  in  the  market  will  not  preclude  a  decree  for  specific  performance.  Hawk- 
ins v.  Maltby,  17  W.  R.  557 ;  s.  c.  L.  R.  4  Ch.  Ap.  200 ;  approving  case  be- 
tween same  parties,  16  id.  209 ;  overruling  same  case,  15  id.  1075 ;  Price  v. 
Denb.,  R.  &  C.  Railw.,  17  id.  572. 

[*133] 


144  TRANSFER  OF  SHARES.  PART  II. 


♦SECTION     VIII. 


Specific  Performance. 


mince  decreed  against  the 
r<  ndee. 
'2.   This  was  denit  <l  in  the  early  cases. 


3.  Owner   of  original  shares   mag   transfer 

them. 

4.  Will  not  decree  specific  performance  where 

not  in  the  power  of  the  party. 


*  §  39.  1.  It  is  considered,  under  the  English  statutes,  that  the 
purchaser  of  shares  in  a  railway  is  bound  to  execute  the  assign- 
ment on  his  part,  procure  himself  to  be  registered,  pay  all  calls 
intervening  the  assignment  and  the  registration  of  his  name  as 
a  shareholder,  and  indemnify  the  seller  against  future  calls,  and 
upon  a  bill  filed  for  that  purpose,  it  was  so  decreed.1 

2.  But  in  some  of  the  earlier  cases,  very  similar  in  principle, 
the  Court  of  Chancery  declined  to  interfere,  and  the  opinion  is 
very  distinctly  intimated,  that  the  law  implied  no  undertaking,  on 
the  part  of  the  purchaser  of  railway  shares,  to  assume  the  position 
and  burdens  of  the  seller.2 

1  Wynne  v.  Price,  3  De  G.  &  S.  310 ;  s.  c.  5  Railw.  C.  465 ;  Shaw  v.  Fisher,' 
2  De  G.  &  S.  11  ;  s.  c.  5  De  G.,  M.  &  G.  596.  These  cases  were  decided  by 
V.  C.  Knight  Bruce,  and  are  obviously  somewhat  at  variance  with  the  principles 
assumed  in  Humble  v.  Langston,  7  M.  &  W.  517.  The  learned  judge  here  seems 
to  have  felt  a  just  indignation  that  any  defence  should  have  been  attempted  in 
such  a  case.  "  The  defence,"  said  he,  "  was  without  apology  or  excuse."  And 
this  same  learned  judge,  in  the  case  of  Jacques  v.  Chambers,  2  Coll  C.  C.  435 ; 
1  Railw.  C.  499,  held,  that  where  a  testator,  at  the  time  of  his  death,  was  pos- 
sessed of  fifty  original  shares,  and  seventy  purchased  shares  in  a  railway,  calls 
upon  which  had  not  all  been  made,  by  his  will  gave  thirty  whole  shares  in  such 
railway  to  trustees,  for  the  benefit  of  a  married  woman  for  life,  without  power  of 
anticipation,  and  thirty  shares  to  B.,  and  twenty-five  original  and  five  purchased 
shares  having  been  allotted  by  the  executors  to  each  of  the  legatees,  the  testa- 
tor's estate  was  liable  to  pay  the  calls  upon  the  shares,  and  a  sum  to  pay  the 
unpaid  calls  was  ordered  to  be  placed  to  a  separate  account,  and  laid  out,  and 
the  income  meanwhile  paid  to  those  entitled  to  the  general  residue.  This  case  is 
decided  upon  the  authority  of  Blount  v.  Hipkins,  7  Simons,  43,  51,  which,  it  is 
here  said,  "  as  it  regards  both  sets  of  shares,  cannot  be  substantially  distinguished 
from  Jacques  v.  Chambers."  See  also  Duncuft  v.  Albrecht,  12  Simons,  189.  But, 
as  before  Baid,  it  is  well  settled,  that  courts  of  equity  in  England  will  not  decree 
specific  performance  of  a  contract  to  sell  public  stocks,  which  may  always  be  had 
in  the  market.     Nulbrown  v.  Thornton,  10  Vesey,  159. 

1  Jackson  v.  Cocker,  2  Railw.  C.  368 ;  s.  c.  4  Beavan,  59. 

[*134] 


§  39.  SPECIFIC    PERFORMANCE.  145 

3.  In  the  case  of  Jackson  v.  Cocker  a  query  is  started  by  the 
*  Master  of  the  Rolls,  upon  the  authority  of  Josephs  v.  Pebrer,8 
whether  a  contract  by  which  the  original  subscribers  of  shares 
in  a  railway  company  stipulate  to  be  relieved  from  their  under- 
taking, and  to  substitute  another  party  in  their  place,  is  to  be  re- 
garded as  legal  ?  But  the  case  referred  to  was  decided  upon  the 
ground  that  the  concern  then  in  question  was  illegal  in  itself, 
within  the  English  statute,4  as  having  transferable  shares,  and 
affecting  to  act  as  a  body  corporate,  without  authority  by  charter 
or  act  of  parliament. 

4.  The  Court  of  Chancery  will  not  decree  specific  performance 
against  a  railway  company  which  promised  to  allot  shares  to  the 
plaintiff,  especially  where  it  appears  such  shares  have  been  given 
to  others.5  A  court  of  equity  will  never,  it  seems,  decree  spe- 
cific performance  against  a  party,  where  it  is  not  in  his  power  to 
perform,  although  such  incapacity  be  the  result  of  his  own  fault. 
But  will,  in  such  case,  leave  the  other  party  to  his  remedy  at  law, 
by  way  of  damages,  which  is  all  the  redress  that  remains.6 

3  3  B.  &  C.  639.  4  6  Geo.  1,  c.  18. 

5  Columbine  v.  Chichester,  2  Phillips,  C.  C.  27. 

6  Greenaway  v.  Adams,  12  Vesey,  395,  400;  Varick  v.  Edwards,  11  Paige, 
289.  In  the  case  of  Miller  v.  The  Illinois  Central  Railw.  &  Robert  &  George 
Schuyler,  24  Barb.  312,  it  was  held,  that  where  the  company,  by  their  treasurer, 
gave  a  receipt  to  the  Schuylers  lor  $7,500  to  be  repaid  with  interest  on  demand, 
or  received  in  payment  of  ten  dollars  on  a  share  of  stock,  to  be  issued  to  them 
or  their  assigns,  when  the  directors  shall  authorize  the  issue  of  more  stock,  this 
only  gave  the  holder  of  such  receipt  an  option  to  take  the  shares  or  the  money, 
and  that  he  could  not  claim  to  be  a  holder  of  stock,  or  to  have  any  right  thereto, 
until  he  had  given  notice  of  his  election  to  take  stock.  And  where  the  holder 
of  this  receipt  had  assigned  it  as  collateral  security  to  the  plaintiff,  with  an  agree- 
ment that  he  should  have  300  of  the  shares,  but  no  notice  of  any  interest  of  plain- 
tiff had  been  given  the  company,  and  the  company  made  a  new  issue  beyond 
what  was  necessary,  and  after  the  7,500  shares  had  been  issued  to  Robert 
Schuyler,  and  the  300  shares  set  apart  by  him  for  plaintiff,  but  the  300  shares 
were  not  transferred  to  plaintiff  till  after  the  second  new  issue,  nor  had  the 
plaintiff  knowledge  of  it  at  the  time  he  accepted  the  300  shares  :  It  was  held  that 
the  plaintiff  had  no  claim  against  the  company  to  allot  him  the  proportion  of  the 
new  issue  of  shares,  which  the  300  shares  were  entitled  to  receive,  they  having 
no  notice  of  his  equitable  ownership  of  the  300  shares  ;  and  that  although  cer- 
tain information  came  to  the  president,  while  acting  in  some  other  capacity,  that 
some  contract  had  been  made,  by  which  the  Schuylers  were  to  transfer  a  portion 
of  the  stock  to  the  plaintiff,  yet  as  this  was  not  given  or  understood  as  notice  to 
the  company,  or  to  him  as  president,  it  could  not  affect  the  company ;  and  that 

10  [*135] 


14G 


TRANSFER    OF    SHARES. 


PART  II. 


♦SECTION     IX. 


Trustee  entitled  to  Indemnity  against  future   Calls. 


1     /  entitled  to  indemnity,  on  general 

principles. 

sh  courts  liisit<i(<d  in  regard  to  rail- 
inn/  s 

3,  4.  ( 'ast  s  r<  vu  wed. 

£,.  .!/■'  tgagees  liable,  as  stockholders,  for  the 
d>  bts  of  the  company. 


6.  The  ostensible  owner  must  respond  to  all 

responsibilities. 

7.  Executors  responsible  personally. 

8.  The  mortgagor  is  entitled  to  redeem  on  re- 

storing the  shares  as  stipulated  in  his 
deed. 


§  10.  1.  It  seems  to  be  regarded  as  the  general  rule  of  chancery 
law.  that  the  trustee  of  property  is  entitled  to  indemnity,  for  ex- 
penses bona  fide  incurred,  in  the  management  and  preservation  of 
the  trust-fund,  or  estate,  either  out. of  the  property,  or  as  a  personal 
duty  from  the  cestui  que  trust,  in  most  cases.1 

■1.  We  apprehend  there  is  no  good  reason  why  this  principle 
should  not  receive  a  general  application  to  the  case  of  shares  in  a 
railway  company,  held  as  security  for  a  debt,  by  way  of  mortgage 
or  pledge.  And  it  would  seem,  that  no  serious  question  could  ever 
have  arisen  upon  the  subject,  but  for  the  strange  inconsistencies 
into  which  the  English  courts  and  judges  have  been  led,  by  at- 
tempting, for  so  long  a  period,  to  maintain  the  doctrine  laid  down 
in  Humble  v.  Langston,2  but  which  is  now  effectually  overruled, 
in  the  tribunal  of  last  resort.3 

3.  But  we  shall  refer  briefly  to  the  decisions,  upon  this  point,  in 
regard  to  railway  shares  and  stock,  in  other  similar  companies. 
It  was  held,  by  Wigram,  Vice-Chancellor,4  that  where  there  was 

the  surrender  of  the  receipt  with  certain  indorsements,  showing  plaintiff's  interest, 
alter  the  resolution  to  issue  the  stock,  fixing  the  mode  of  distribution,  could  not 
bind  them  to  allot  shares  to  the  plaintiff  upon  the  300  shares. 

1  Murray  v.  De  Rottenham,  6  Johns.  Ch.  52,  67;  Green  v.  Winter,  1  Johns. 
Ch.  27;  Watts  v.  Watts,  2  M'Cord,  Ch.  82;  Myers  v.  Myers,  2  M'Cord,  Ch. 
264;  McMillan  v.  Scott,  1  Monroe.  151;  Morton  v.  Barrett,  22  Maine,  257; 
Draper  v.  Gordon,  4  Sandf.  Ch.  210;  Egbert  v.  Brooks,  3  Harring.  110; 
Methodist  Episcopal  Church  v.  Jaques,  1  Johns.  Ch.  450;  Story  on  Bailments, 
§§  306,  306  a,  357,  • 

^  7  M.  &  W.  517. 

3  Walker  v.  Bartlett,  18  C.  B.  845;  s.  c.  36  Eng.  L.  &  Eq.  368.  See  also 
Paine  o.  Hutchinson,  Law  Rep.  3  Eq.  257. 

*  Phene  v.  Gillan,  5  Hare,  1.     In  this  case,  it  was  held,  that  where  the  mort- 

[*136] 


§  40.  INDEMNITY   AGAINST   FUTURE   CALLS.  147 

*a  contract  for  retransfer,  claimed  by  the  mortgagor,  or  found,  in 
express  terms,  in  the  contract  of  pledge,  or  mortgage,  or  inferable 
from  circumstances,  this  was  sufficient  ground  for  implying  a 
contract,  by  the  mortgagor,  to  indemnify  the  mortgagee,  against 
liability  to  the  creditors  of  the  company,  for  debts  incurred,  while 
his  name  remained  upon  the  register  of  shares,  as  owner,  and  a 
decree  was  made  accordingly. 

4.  The  same  learned  judge,  in  the  same  case,  considered,  that 
where  the  mortgage  was  made  simply  as  an  absolute  transfer, 
subject  to  redemption,  and  nothing  had  passed,  binding  the  mort- 
gagor to  take  a  retransfer  of  the  shares,  the  mortgagor  was  not 
bound  to  indemnify  the  mortgagee  against  debts  incurred  after  the 
transfer  made  in  the  mortgage,  and  before  the  mortgage  debt  was 
paid  off.  But  it  is  here  maintained,  that  the  mortgagee  has  not  in 
such  case  any  right,  at  law,  against  the  mortgagor,  as  to  payments, 
which  he  has  been  compelled,  to  make,  while  he  remained  the 
ostensible  owner  of  the  shares,  even  where  a  contract  for  retrans- 
fer is  shown.  But  an  English  writer  upon  this  subject5  seems 
to  incline  to  the  opinion  that,  in  such  case,  an  action  of  trespass 
on  the  case  might  be  maintained  against  the  purchaser  of  shares 
who  fails  to  cause  his  name  to  be  registered  as  owner,  or  to  in- 
demnify the  seller  against  liabilities  after  the  sale.  And  the  same 
principle  will  apply  to  the  mortgagee,  after  the  debt  is  paid.  But 
all  these  refinements  must  now,  we  think,  be  regarded  as  effectu- 
ally abrogated,  by  the  virtual  abandonment,  by  the  English  courts, 
of  the  rule  laid  down  in  Humble  v.  Langston,  and  the  recognition 
of  the  contrary  doctrine. 

5.  It  has  been  held,  in  this  country,  that,  where  B.  being  in- 
debted, transferred  shares  to  his  creditors,  as  security,  with  the 
power  of  sale,  and  upon  condition  that  the  shares  should  be  re- 
turned or  accounted  for,  whenever  the  debt  should  be  paid,  the 
debt  being  paid  off,  and  an  informal  power  of  retransfer  given  the 
mortgagor,  and  subsequently  a  more  formal  one,  the  mortgagees 
were  to  be  regarded  as  stockholders,  until  the  actual  retransfer  of 

gagor  is  entitled  to  claim  a  retransfer  of  shares,  standing  on  the  register  of  shares, 
in  the  name  of  the  mortgagee,  the  debt  being  paid  off,  he  is  entitled  to  take  pro- 
ceedings to  compel  such  retransfer  on  the  books  of  the  company,  in  the  name  of 
the  mortgagee,  giving  the  proper  indemnity  for  costs.  And  either  the  company 
or  the  directors,  who  have  prevented  the  shares  from  being  transferred,  are 
proper  parties  to  the  bill,  and,  it  would  seem,  necessary  parties. 
6  Hodges,  122. 

[*137J 


14S  TRANSFER  OF  SHARES.  PART  II. 

the  Bhares,  and  as  such  liable  to  the  creditors  of  the  company, 
under  the  charter.1  As  the  case  of  Humble  v.  Langston  is  not  in 
puis  overruled,  although  it  is  in  principle  we  think,  we  here  in- 
sert the  substance  of  the  opinion  of  the  court  in  Walker  v.  Bart- 
let  i.  as  showing  the  present  state  of  the  English  law  on  the 
Bubj 

6  Adderly  v.  Storm  &  Bailey,  6  Hill,  624.  Bronson,  J.,  argues  the  liability 
of  the  in  to  the  creditor-  of  the  company,  while  their  names  remained 
on  the  books ol  the  company,  as  absolute  shareholders,  on  the  ground  that  "they 
might  receive  dividends,  vote  at  elections,  and  enjoy  all  the  rights  pertaining  to 
the  ownership  <>f  the  property,  and  with  the  privileges  they  must  take  the  bur- 
den* of  a  stockholder."  A  query  is  here  started  whether  a  retransfer  to  the  mort- 
gagor  of  tin'  shares,  upon  the  payment  of  the  debt,  might  not  release  the 
mortgagee.  "  The  assignment,  as  between  the  parties  to  it,  would  have  passed 
the  1  gal  interest  in  the  stock."  But  are  the  creditors  of  the  company  bound  to 
look  beyond  the  register  of  share.*?  Rosevelt  v.  Brown,  11  N.  Y.  148;  Wor- 
rall  o.  Judson,  5  Barb.  210;  Stanley  v.  Stanley,  13  Shepley,  191.     In  Adderly 

orm,  supra,  it  is  intimated,  that  a  fraudulent  transfer  of  stock  by  a  solvent 
own<  r  i"  an  insolvent  party,  for  the  purpose  of  avoiding  liability  to  the  creditors 
of  the  company,  might  not  avail  the  party,  even  at  law. 

7  ••  The  case  of  Wynne  v.  Price,  3  De  G.  &  S.  310,  shows  that  in  equity  the 
plaintiff  would  be  entitled,  under  the  circumstances  of  the  present  case,  to  in- 
demnity: but  it  was  contended  for  the  defendant,  that,  however  the  case  might 
be  in  equity,  there  was  no  contract  for  indemnity  to  be  implied  by  law;  and  the 

of  Humble  v.  Langston,  7  M.  &  W.  ol7,  was  relied  upon  as  a  direct  author- 
ity against  the  plaintiff  upon  this  point ;  and  the  Court  of  Common  Pleas,  in  the 
judgment  appealed  against,  considered  that  it  was  bound  by  that  decision,  though 
it  was  intimated  that  but  for  that  express  decision  their  own  judgment  might  have 
been. different.     It  must  be  admitted  that,  in  principle.,  no  substantial  difference 
■  ■an  be  taken  between  that  case  and  the  present,  except  this,  that  in  Humbler. 
Langston,  the  plaintiff  claimed  to  be  indemnified  by  the  defendant  against  all 
future  calls,  even  though  made  after  the  defendant  had  himself  transferred  the 
-  to  other  persons;  and  the  Court  of  Exchequer,  at  the  end  of  the  judg- 
ment, observes,  that  if  there  were  any  analogy  in  principle  between  the  case  of 
ett   v.  Lynch,  and  that   before  the  court,   the   defendant's  implied  promise 
I  only  be  to  indemnify  against  such  calls  as  should  be  made  while  he  was 
beneficially    interested,    whereas    the    plaintiff  Humble   claimed   an   indemnity 
ills  mad.;  after  the  defendant  had  parted  with  his  interest.     This,  no 
a  very  important  distinction;  and  though  the  Court  of  Exchequer  ex- 
1"'  "■-   an   "pinion  that  there  was  no  contract  of  indemnity  at  all,  it  adverts  to 
between  a  claim  to  indemnify  during  the  time  the  defendant  is 
d,  and  a  claim  to  be  indemnified  after  he  has  ceased  to  be 
The  i  ircumstances  ol  the  present  case  are,  therefore,  distinguishable 
in  Humble  v.  Langston,  and  it  consequently  is  not  so  direct  an  author- 
ir.v  :l  plaintiff's  claim  in  the   present  case,  as  at  first  sight  it  might 

ir  to  be. 

[*18 


§  40.  INDEMNITY    AGAINST    FUTURE    CALLS.  1-19 

*6.  It  seems  most  unquestionable  that  a  trustee  may  be  made 
liable  for  assessments  or  calls  upon  the  shares  standing  in  his 
name,  beyond  the  amount  of  the  trust  property.8  And  the  trans- 
feree of  shares,  having  taken  upon  himself  the  position  and  attitude 
of  owner,  cannot  be  allowed  to  excuse  himself  from  responsibility 
by  pleading  irregularity  in  transfers,  and  it  makes  no  difference  in 
this  respect  whether  he  hold  as  trustee  or  beneficially. 

"  It  seems  to  us,  therefore,  that  the  circumstances  of  this  case  bring  it  directly 
within  the  principle  upon  which  Burnett  v.  Lynch  was  decided.  In  the  present 
case,  the  defendant  entered  into  no  express  agreement  to  pay  calls  or  indemnify, 
but  he  accepted  the  only  transfer  the  plaintiff  could  give,  and  which  invested  him 
with  full  power  to  become  the  registered  owner  of  the  shares  when  he  pleased. 
That  transfer  expressed  that  the  transferee  took  them  subject  to  the  same  rules 
as  those  under  which  the  plaintiff  held  them,  one  of  which  was,  that  the  registered 
owner  should  pay  the  calls.  It  could  hardly  have  been  the  intention  of  the  par- 
ties, that  if  the  defendant,  for  his  own  benefit,  omitted  to  make  a  perfect  transfer, 
by  registration  in  the  company's  books,  the  plaintiff  should  still  continue  to  pay 
the  calls;  and  if  that  was  not  the  intention,  was  it  not  understood  between  them 
that  the  defendant  should  save  the  plaintiff  harmless  from  any  calls  made  during 
the  time  when  he  was  virtually  owner  of  the  shares? 

"  In  Burnett  v.  Lynch,  a  lease  had  been  granted  to  Burnett,  in  which  he  cov- 
enanted to  pay  the  rent  and  repair  the  premises ;  his  executors  assigned  the  lease 
to  Lynch,  subject  to  the  performance  of  the  covenant,  but  without  any  express 
covenant  or  contract  by  him  that  he  would  pay  the  rent  or  perform  the  covenant. 
The  executors  were  called  upon  by  the  landlord,  and  obliged  to  pay  damages  for 
not  repairing,  according  to  the  covenant,  during  the  time  Lynch  was  assignee ; 
the  executors  brought  an  action  on  the  case  against  Lynch,  founded  on  a  breach 
of  duty  in  not  repairing.  In  giving  judgment  for  the  plaintiffs,  Abbott,  C.  J., 
says,  '  It  is  true,  the  defendant  entered  into  no  express  covenant  or  contract 
that  he  would  pay  the  rent  or  perform  the  covenants ;  but  he  accepted  the  as- 
signment subject  to  the  performance  of  the  covenants  ;  and  we  are  to  consider 
whether  any  action  will  lie  against  him.  If  we  should  hold  that  no  action  will  lie 
against  him,  the  consequence  will  follow,  that  a  man  having  taken  an  estate  from 
another,  subject  to  the  payment  of  rent  and  performance  of  covenants,  and  hav- 
ing thereby  induced  an  undertaking  in  the  other  that  he  would  pay  the  rent  and 
perform  the  covenants;  will  be  allowed  to  cast  that  burden  upon  the  other  person. 
Reason  and  common  sense  show  that  that  never  could  be  intended.'  He  then  goes 
on  to  say,  that  though  an  action  on  the  case  would  lie,  there  might  also  be  an 
action  of  assumpsit. 

"  With  the  distinction  of  circumstances  to  which  we  have  already  adverted 
between  this  case  and  that  of  Humble  v.  Langston,  we  think  that  the  principle 
upon  which  the  case  of  Burnett  v.  Lynch  was  decided,  is  directly  applicable  to 
the  present  case,  and  that  the  plaintiff  is  entitled  to  make  the  rule  absolute  to  set 
aside  the  nonsuit,  and  enter  a  verdict  upon  the  first  count  of  the  declaration,  and 
so  much  of  the  pleas  as  may  be  applicable  to  that  count." 

8  Hoare  ex  parte,  2  Johns.  &  Hem.  229 ;  s.  c.  8  Jur.  (N.  S.)  713. 

[*139] 


L50 


Ti;  kNSFER   OF   SHARKS. 


PART  II. 


7.  Thus  where  reserved  shares  were  offered  to  the  shareholders 
and  the  executory  of  such  as  arc  deceased,  in  proportion  to  the 
original  shares,  it  was  held  that  executors  who  accept  shares  must 
•be  placed  upon  the  list  of  contributories  in  their  own  right,  and 
not  in  their  representative  capacity.9 

8.  Where  the  owner  of  shares  in  the  public  stocks,  or  in  joint- 
stork  ctuiip anies,  sells  the  same  to  raise  money,  and  loans  the  money 
upon  mortgage  of  real  property,  with  conditions  for  having  the 
Bharea  replaced,  at  a  given  time,  which  is  not  done,  but  the  mort- 
gage continued,  the  court  will  allow  the  redemption  of  the  mortgage 
upon  retransfer  of  the  shares  stipulated  at  the  price  on  the  day  of 
the  decree,  although  the  funds  had  fallen.10 


SECTION    X. 


Fraudulent  Practices  to  raise  the  Price  of  Shares. 


!     '        Is  of  i  quity  will  vacate  sales  so  pro- 

'_'.   Necessary  parties.     Extent  of  redress. 
'.',.  4.  Dtvidi  rids  declared wh  n  none  are  earned 

will  vacate  sales,  and  subject  directors  to 

iridictrm  nt. 
5.  Equity    will    not  interfere   where   vendor 

mird  bona  fide,  unless  the  shares  were 

valueless. 


6.  Managers  of  company  liable  in  tort  to  party 

injured. 
7  Sf  n.  10.    Purchasing   shares   in   another 

company  considered. 
8.  Bona  fide  purchaser  of  shares  fraudulently 

issued  acquires    same    riyhls   as   other 

shareholders. 


§41.  1.  All  fraudulent  practices,  either  of  the  shareholders,  or 
directors,  resorted  to  for  the  purpose  of  raising  the  price  of  shares 
in  the  market,  where  sales  have  been  induced  in  faith  of  the  truth 
of  such  representations,  will  be  relieved  against  in  a  court  of 
equity.1    As  where  the  directors  of  a  joint-stock  company,  in  order 

'  Fearnside  &  Dean's  Case,  Law  Rep.  1  Ch.  App.  231. 

10  Blyth  v.  Carpenter,  12  Jur.  (N.  S.)  898;  s.  c.  L.  R.,  2  Eq.  501. 

1  Stainbank  o.  Fernley,  '.)  Simons,  556.  And  in  a  more  recent  case,  the 
plaintiff,  a  director  in  a  bank,  who  had  been  such  from  its  organization,  who 
usually  attended  the  meetings,  and  was  actually  present  and  took  part  in  the 
proceedings  of  tin-  board  of  directors  when  the  last  dividend  was  declared,  hav- 
ing purchased  from  the  cashier  of  the  institution  twenty  sliares  of  the  capital 
stock,  brought  an  action  to  have  such  contract  rescinded,  and  to  recover  back 
the  money  paid,  on  the  ground  of  false  representations  and  concealments  by  the 
cashier  as  to  the  value  of  the  stock  and  the  condition  of  the  bank  at  the  time  of 
[*140] 


§  41.  PRACTICES   TO    RAISE   THE   PRICE   OP   STOCK.  151 

*  to  sell  their  shares  to  advantage,  represented  in  their  reports,  and 
by  their  agents,  that  the  affairs  of  the  company  were  in  a  very 
prosperous  state,  and  declared  large  dividends,  at  a  time  when  the 
affairs  of  the  company  were  greatly  embarrassed. 

2.  A  person  who  had  been  induced,  by  these  means,  to  purchase 
shares  of  one  of  the  directors,  filed  a  bill  against  that  director, 
praying  to  be  paid  his  purchase-money  and  offering  to  rctransfer 
the  shares  ;  a  demurrer  for  want  of  equity,  and.  because  all  the  other 

the  purchase:  Held,  that  the  plaintiff  was  not  estopped  from  setting  up  his  actual 
ignorance  of  the  condition  of  the  bank  at  the  time  of  the  sale. 

That  although  the  purchaser  was  a  director  of  the  bank,  having  the  means  of 
knowledge,  he  was  not  in  the  particular  transaction  chargeable  with  notice  of  the 
condition  of  the  bank. 

That  if  he  was  actually  ignorant  of  its  condition,  the  fraudulent  vendor  would 
be  equally  responsible  to  him  for  the  deceit  as  to  any  stranger  to  the  institution. 

That  it  was  not  a  case  in  which  the  plaintiff  was  legally  bound  to  know  the 
truth  or  falsity  of  the  vendor's  representations. 

Held,  also,  that  the  evidence  in  such  action  plainly  showing  that  at  the  time 
of  the  alleged  sale  and  transfer  of  the  stock,  on  the  29th  August,  1857,  the  bank 
was,  by  the  application  of  all  the  ordinary  tests,  sound,  solvent,  and  prosperous, 
and  the  stock  worth  all  that  the  defendant  had  represented  it  to  be,  the  plaintiff 
could  not  be  allowed  to  show  the  contrary  by  introducing  in  evidence  what 
purported  to  be  a  certified  copy  of  proceedings  had  in  November,  1857,  on  the 
petition  of  certain  stockholders  for  the  re-establishment  of  the  bank.  Lefever  v. 
Lefever,  30  N.  Y.  27. 

In  the  case  of  Smith  v.  The  Reese  River  Silver  M.  Co.,  Law  Rep.  2  Eq. 
264;  s.  c.  12  Jur.  (N.  S.)  616  (April,  1866),  where  a  person  was  induced 
to  take  shares  in  a  company  on  the  faith  of  a  statement  in  the  prospectus,  as  to 
the  nature  of  the  property  contracted  to  be  purchased,  which  statement  the  pro- 
moters had  no  ground  for  believing  to  be  true,  and  which  turned  out  to  he  untrue, 
Sir  W.  Page  Wood,  V.  C,  held,  he  was  entitled  to  an  injunction  restraining  the 
company  from  enforcing  calls  against  him,  notwithstanding  the  articles  of  associ- 
ation to  which  the  prospectus  referred  would  have  informed  the  purchaser  that 
the  statement  in  the  prospectus  was  not  justified.  The  learned  judge  said  :  "  He 
is  not  bound  to  call  at  the  office  for  the  mere  purpose  of  ascertaining  whether  the 
representations  are- false  or  not.  He  was  entitled  to  rely  upon  the  representa- 
tions made  to  him  as  being  true  to  the  knowledge  of  the  directors." 

But  the  party  who  claims  to  be  injured  by  such  fraudulent  practices  of  direc- 
tors and  other  agents  of  corporations  must  bring  his  action  for  relief  at  the  earliest 
practicable  opportunity  after  having  learned  the  probable  fact  of  such  fraudulent 
practices.  Clarke  v.  Dickson,  1  EL,  Bl.  &  El.  148;  s.  c.  5  Jur.  (N.  S.)  1029; 
Hop  &  Malt  Co.  in  re,  Law  Rep.  1  Eq.  483.  One  who  purchases  upon  the  facts 
stated  in  a  prospectus  must  be  held  to  have  notice  of  facts  stated  in  other  docu- 
ments expressly  referred  to  unless  there  is  special  grounds  for  presuming  the 
contrary.  lb.  See  also  Briggs  ex  parte,  12  Jur.  (N.  S.)  322;  s.  c.  L.  R.  1 
Eq.  483. 

[*141] 


[52  TRANSFER  OP  SHARES.  PART  II. 

partners  in  the  transaction  ought  to  have  been  made  parties,  was 
overruled.  Bui  where  a  bill  was  filed  against  the  public  officer  of 
a  joint-stock  bank,  charging  a  similar  fraud,  through  the  fraudu- 
lent representations  of  the  directors,  in  their  reports,  as  to  the 
prosperous  state  of  the  company's  affairs,  and  that  the  plaintiff 
had  thereby  been  induced  to  purchase  five  hundred  shares  in  the 
hank,  and  praying  that  the  sale  might  be  declared  void  as  between 
him  and  the  company,  and  that  they  might  be  decreed  to  repay 
the  purchase-money,  it  was  held,  that  as  the  litigation  was  between 
one  member  of  the  partnership  and  the  other  members,  the  public 
*  officer  was  improperly  made  a  party,  as  representing  the  company, 
and  a  demurrer  was  allowed.2  But  in  a  case  before  the  Court 
of  Chancery  Appeal,  it  was  decided  that  the  directors  of  a  railway 
company  are  in  the  position  of  trustees,  and  if  the  purchaser  has 
not  by  his  own  conduct  affected  his  rights,  the  company  cannot,  as 
against  him,  retain  money  acquired  from  a  fraudulent  sale  of  their 
property  to  him,  through  the  false  representations  of  their  direc- 
tors. But  the  court  held  that  the  plaintiff  was  not  entitled  to  a 
decree  against  the  directors,  but  was  entitled  to  a  decree 
against  the  company  for  his  money  and  interest.8  And  it  seems 
to  be  settled,  by  the  decision  of  the  House  of  Lords,  that  in 
England  and  in  Scotland,  for  any  fraudulent  act  done  by  the  di- 
rectors, without  the  range  of  the  powers  of  the  company,  whereby 
third  persons  suffer  damage,  they  are  personally  liable  to  an  action: 
but  for  all  such  acts  within  the  power  of  the  body  of  the  share- 
holders to  sanction,  although  the  directors  might  not  have  been 
justified  in  what  they  were  doing,  there  could  be  no  right  of  ac- 
tion.4 And  a  director  cannot  screen  himself  from  responsibility 
for  any  imposition  which  is  brought  upon  others  by  means  of  the 
circulation  of  a  prospectus  through  his  instrumentality,  upon  the 
ground  that  the  document  is  capable  of  a  construction  by  which  it 

-  I  Ion  o.  Connell,  10  Simons,  58.  It  was  further  held,  in  this  ease  (10 
Simons,  79)  that  it  is  not  competent  for  the  party  in  such  case  to  file  a  bill  against 
the  company  and  some  of  the  directors,  praying,  that  if  lie  is  not  entitled  to  relief 
agail  ipany,  he   may  have   it    against  the  directors,  and  that  such  a  bill 

is  demurrable,  <>n  the  ground  that  the  prayer  for  relief  should  be  absolute,  for 
relief  against  the  directors,  in  order  to  maintain  the  bill  against  them.  But  it  is 
not  necessary  to  make  all  the  parties  to  a  fraud  defendants  in  a  bill  for  relief. 

3  Conybeare  v.  New  Brunswick  &  Canada  Railw.  &  Land  Co.,  1  De  G.,  F. 
&  J.  578     3.  C,  6  Jur.  (X.  S.)  518. 

*  Davidson  v.  Tulloch,  3  McQu.  Ho.  Lds.  783;  s.  c.  0  Jur.  (N.  S.)  543. 
[*142] 


§41.  PRACTICES   TO    RAISE   THE   PRICE   OF   STOCK.  153 

may  be  regarded  as  true.  It  is  for  the  jury  to  say  whether  that  is 
the  natural  sense.5  And  it  is  not  necessary  that  there  should  have 
been  any  direct  communication  between  the  plaintiff  and  defend- 
ant in  order  to  subject  the  defendant  to  an  action  for  false  repre- 
sentation. If  the  defendant  authorized  the  circulation  of  the 
prospectus  before  the  public,  containing  false  representations,  by 
*  which  the  plaintiff  was  misled,  it  is  the  same  as  if  the  defendant 
had  made  such  representations  to  him  personally.5  And  the  fact 
that  other  inducements  were  also  held  out  to  plaintiff  by  other 
parties  by  which  he  was  partially  influenced,  will  not  excuse  the 
defendant.5  But  the  representation  of  an  officer  of  the  company 
as  to  the  effect  of  deeds,  which  it  forms  no  part  of  his  duty  to 
expound,  will  not  release  the  party  executing  the  deed  from  his 
liability.6 

3.  The  declaring  of  dividends  by  the  directors,  where  none 
have  been  earned,  if  done  by  them  for  the  purpose  of  fictitiously 
enhancing  the  price  of  shares,  for  their  own  benefit,  is  regarded 
as  such  a  fraud  as  will  relieve  a  party  who  has  purchased  shares 
in  faith  of  such  facts,  at  prices  greatly  beyond  their  value,7  and 
the  transfer  of  the  shares  will  be  set  aside. 

4.  In  this  case,"  Lords  Campbell  and  Brougham  concurred  in 
saying:  "  Dividends  are  supposed  to  be  paid  out  of  profits  only, 
and  where  directors  order  a  dividend  to  be  paid,  when  no  such 
profits  have  been  made,  without  expressly  saying  so,  a  gross 
fraud  is  practised,  and  the  directors  are  not  only  civilly  liable  to 
those  whom  they  have  deceived  and  injured,  but  are  guilty  of 
conspiracy,  for  which  they  are  liable  to  be  prosecuted  and  pun- 
ished." 

5.  Where  both  parties  labored  under  the  same  delusion  in  re- 
gard to  the  value  of  stock,  relief  could  not  be  granted,  of  course, 
on  the  ground  of  fraud  in  the  sale,  and  a  court  of  equity  will  not 
ordinarily  interfere  to  set  aside  a  sale  on  the  ground  of  mutual 
misapprehension  as  to  the  state  and  condition  of  the  subject-mat- 
ter, unless  in    extreme  cases,  as  where  that  is  sold  as  valuable 

5  Clarke  v.  Dickson,  6  C.  B.  (N.  S.)  453;  s.  c.  5  Jar.  (N.  S.)  1029.  See 
also  Nicol  ex  parte,  in  re  Royal  British  Bank,  3  De  G.,  F.  &  J.  387  ;  s.  c.  5 
Jur.  (N.  S.)  205. 

6  Athenanim  Life  Ins.  Co.  in  re  Sheffield,  5  Jur.  (N.  S.)  216;  s.  c.  John- 
son, Eng.  Ch.  451. 

7  Burnes  v.  Pennell,  2  House  of  Lords'  Cases,  197. 

[*14G] 


154  TRANSFER    OF    SHARES.  PART  II. 

which  is  wholly  valueless,  or  does  not  exist.8  To  constitute  a 
fraud  in  Buch  cases,  it  is  requisite,  ordinarily,  that  the  parties 
should  have  been  upon  unequal  looting  in  regard  to  their  means 
of  access  to  the  knowledge  of*  the  true  state  of  the  company's 
funds  and  property,  and  that  the  party  gaining  the  advantage  in 
the  bargain  should,  in  some  way,  participate  in  giving  curreney 
to  the  false  estimate  of  its  condition,  beyond  the  mere  fact  of  repeat- 
ing *  the  report  of  the  directors,  where  both  parties  have  equal 
means  of  judging  of  its  correctness. 

(J.  It  seems  to  be  regarded  as  settled  law,  that  in  case  of  such 
false  representations  to  raise  the  price  of  stocks,  and  damage 
thereby  sustained,  the  suffering  party  may  maintain  an  action  of 
tort  against  the  party  making  the  false  representation,  although 
it  were  not  made  directly  to  such  injured  party,  there  being  no 
necessity  for  any  privity  between  the  parties  to  support  an  action 
of  tort  for  a  false  representation.  But  where  the  action  is  ex 
contractu  or  quasi  ex  contractu,  some  privity  is  indispensable  to 
the  maintainance  of  the  action.9 

7.  It  has  recently  been  decided  that  a  bona  fide  sale  and  trans- 
fer of  property  of  one  company  to  another,  in  consideration  of 
shares  in  the  one  company  being  transferred  to  the  other,  is  not 
such  a  return  of  capital  as  would  be  in  contravention  of  the  Eng- 
lish statute,  which  is  in  confirmation  of  the  general  rule  of  law, 
prohibiting  the  conversion  by  corporations  of  capital  into  income, 
and  thus  virtually  reducing  the  stock  of  the  company  below  the 
requirements  of  the  charter;  and  on  the  other  hand  giving  the 
shares  of  the  company  a  false  value  in  the  market  by  reason  of 
fictitious  dividends.10 

8  1  Story's  Eq.  Jur.  §  142  ;  Hitchcock  v.  Giddings,  4  Price,  135,  141 ;  2  Kent, 

(  'innlii.  46    . 

■  Gerhard  v.  Bates,  2  El.  &  Bl.  47C  ;  s.  c.  20  Eng.  L.  &  Eq.  129.  In  tliis  case 
the  defendant  was  one  of  the  promoters  and  managing  directors  of  a  joint-stock 
company,  and,  in  offering  the  shares  for  sale,  had  guaranteed  a  certain  semi- 
annual dividend  to  all  who  should  purchase,  but  without  any  other  communication 
witli  the  plaintiff  personally,  but  the  plaintiff  purchased  upon  the  faith  of  such 

eral  guaranty  or  representation;  and  it  was  held  that  he  could  not  maintain 
an  action  upon  tin-  guaranty,  but  that  he  might  recover  in  tort,  as  for  a  fraudulent 
representation.     Post,  §§  234,  240. 

diffC.  &  C.Co.  in  re  Norton,  11  W.  Rep.  1007.    See  also  MeDougall  v. 
!)   Imp.  H.  Co.,  2  B.  &M.  528;  s.  c.  10  Jur.  (N.  S.)  1043.    This  point  of 

[•144] 


42. 


LIABILITY    OP    COMPANY    FOR   NOT   REGISTERING. 


155 


*  8.  But  the  bona  fide  purchaser  of  shares  fraudulently  issued 
acquires  the  same  right  as  other  shareholders,  unless  he  buys 
after  the  company  is  in  the  process  of  liquidation  ;  and  even  in 
that  case  he  may  come  in  for  his  equal  proportion  of  the  assets,  by 
proving  that  he  bought  of  one  who  was  a  bona  fide  holder  before 
the  company  was  subjected  to  the  process  of  being  wound  up.11 
But  it  was  held  that  a  bona  fide  sale  of  shares  in  a  company,  en- 
tered into  after  the  presentation  of  the  petition,  but  before  the 
first  advertisement  for  winding  up  the  company,  both  vendor  and 
purchaser  being  ignorant  that  such  a  petition  was  pending,  was 
held  sufficient  to  have  passed  the  title.    But  the  rule  was  reversed.12 


SECTION    XI. 


Liability  of  Company  for  not  registering  Transfers. 


1.  The  company  liable  to  action. 

2.  May  be.  compelled  to  record  transfers  by 

mandamus. 

3.  But  not  compellable  to  record  mortgages  of 

shai'es. 


4.  Grounds  of  denying  mandamus. 

5.  Bill  in  equity  most  appropriate  remedy. 

6.  Rule  of  damages. 

7.  A  fraudulent  cancellation   of  an  unregis- 

tered transfer  will  not  affect  the  title. 


§  42.  1.  It  seems  to  be  settled  in  England,  that  an  action  will 
lie  against  a  joint-stock  company,  who  neglect  or  refuse,  upon  proper 
request,  to  register  shares  and  deliver  new  certificates,  after 
the  deed  of  transfer  has  been  sent  to  the  secretary.     Damages 

one  company  taking  shares  in  another  company  is  discussed,  to  some  extent,  in 
the  Court  of  Chancery  Appeal  in  the  case  of  Great  Western  Railw.  Co.  v. 
Metropolitan  Co.,  9  Jur.  (N.  S.)  .562.  There  can  be  no  doubt,  as  a  general 
rule,  this  will  not  be  allowed,  unless  by  the  express  sanction  of  legislative  per- 
mission. And  it  was  here  considered,  that  such  an  express  sanction  will  not  be  con- 
strued to  extend  to  additional  shares,  issued  by  the  same  company,  and  expressly 
required  to  be  allotted  to  the  existing  shareholders.  Vice-Chancellor  Wood,  when 
the  case  was  before  him,  cited  the  case  of  Solomons  v.  Lang,  12  Beav.  377,  as 
establishing  the  right  of  the  defendant  in  the  suit,  to  raise  the  question  of  the  plain- 
tiff's right  to  take  these  additional  shares,  beyond  the  amount  which  the  special 
legislative  permission  authorized.  The  case  of  the  Attorney-General  v.  The  Great 
Northern  Railw.  Co.,  1  Drew.  &  Sm.  154 ;  s.  c.  6  Jur.  (N.  S.)  1006,  is  also  cited 
by  the  learned  judge  as  analogous  to  the  case  then  before  him. 

11  Barnard  v.  Bagshaw,  1  H.  &  M.  09. 

12  Emmerson's  Case,  Law  Rep.  2  Eq.  231 ;  s.  c.  reversed  on  Appeal,  Law 
Rep.  1  Ch.  App.  433. 

[*145] 


156  TRANSFER    OF   SFIARES.  TAUT  II. 

may  be  recovered,  it  seems,  by  reason  of  such  refusal  of  the  com- 
pany,  whereby  the  party  Is  deprived  of  the  right  to  attend  and  vote 
at  the  meetings  of  the  company,  and  especially  where  calls  are 
made  upon  the  shares,  and  in  consequence  of  non-payment  the 
shares  are  declared  forfeited  and  sold.1 

There  can  be  no  question  probably  in  this  country,  that 
where  the  company  refuse  on  reasonable  request,  to  make  the 
proper  entry  upon  their  books  of  the  transfer  of  shares,  whereby  the 
owner  is  liable  to  be  deprived  of  any  legal  right,  or  pecuniary 
advantage,  the  company  may  be  compelled  to  do  their  duty,  in 
the  premises,  by  writ  of  mandamus. 

3.  Bui  it  has  been  held,  that  the  company  are  not  bound  to  reg- 
ister trust-deeds  or  mortgages,  and  especially  such  as  contain  other 
property,  or  the  stock  of  other  companies.  The  mandamus  was 
refused  in  such  a  case,  in  the  Queen's  Bench,  so  late  as  May,  1856, 
and  upon  the  ground,  as  stated  by  Lord  Campbell,  C.  J.,  that  "  if 
the  company  were  bound  to  register  this  deed,  they  must  become 
the  custodians  of  it,  and  must  incur  great  responsibility  as  to  its 
safe  custody,  and   that   therefore  convenience  requires   that  they 

;  Bodges  on  Railways,  123;  Catchpole  v.  Ambergate  Railw.  Co.,  1  Ellis  & 
Black,  111;  16  Eng.  L.  &  Eq.  163.  See  also  Wilkinson  v.  Anglo-California 
Gold  ( !o.  18  Q.  B.  728;  s.  c.  12  Eng.  L.  &  Eq.  444.  In  regard  to  the  right  to 
sustain  a  writ  of  mandamus  in  ngland,  to  compel  such  transfer,  upon  the  books 
of  the  company,  sec  Rex  v.  Worcester  Canal  Co.,  1  M.  &  R.  529;  Regina  v. 
I.  rerpool,  Manchester,  &  Newcastle-upon-Tyne  Railw.  Co.,  11  Eng.  L.  &  Eq. 
408:  Sargent  v.  Franklin  Insurance  Co.,  8  Pick.  90.  So  also  an  action  on  the 
will  lie  for  not  transferring  stock.  The  rule  of  damages,  where  the  stock 
has  been  sold,  as  the  property  of  the  vendor,  is  the  value  of  the  shares  at  the  time 
of  the,  refusal,  8  Pick.  90,  or  it  has  sometimes  been  held,  the  highest  value, 
between  the  time  of  refusal  and  the  commencement  of  the  action.  Kartright  v. 
Buffalo  ( lommercial  Bank,  20  Wend.  91  ;  s.  c.  22  Wend.  348.  And  some  cases 
e.\t.  nd  it  even  to  the  time  of  trial.      But  see  ante,  §§  36,  38. 

W  here  stuck  in  a  railway  is  purchased  and  registered  in  the  name  of  a  married 
woman,  out  of  her  earnings,  she  and  her  husband  may  sue  jointly  for  dividends, 
a"  '  if  »he  sue  alone,  it  is  only  ground  of  abatement.     Dalton  v.  Midland  Railw. 
!  C.  B.  474;   s.  c.  20  Eng.  L.  &  Eq.  273. 

mot  be  transferred  so  as  to  pass  the  title  after  the  dissolution  of  the 
corporation,  the  shareholders  being  then  only  entitled  to  a  share  in  the  assets. 
James  v.  Wood:  nil',  2  Denio,  574. 

Where  a  company  have  registered  a  transfer,  which  is  alleged  to  he  a  forgery, 
and  are  threatened  with  a  suit  from  both  the  tr.  nsferror  and  transferee,  the 
court  will   not  grant  an  interpleader.     Dalton  v.  Midland  Railw.  Co.  12  C.  B. 
13  C.  B.  474;  22  Eng.  L.  &  Eq.  452. 
[*146] 


§  42.  LIABILITY   OF    COMPANY   FOR   NOT   REGISTERING.  157 

should  only  bo  bound  to  register  mere  transfers,  passing  the  legal 
title,  and  showing  who  is  the  legal  owner  of  the  shares."  2 

4.  But  a  mandamus  to  compel  the  registry  of  the  transfer  of 
shares  in  a  railway  company  to  an  infant,3  was  denied.  And  the 
*  court  of  equity  declined  to  interfere  to  compel  the  registry  of  the 
transfer  of  shares  when  the  company  are  denied  the  opportunity  of 
inspecting  the  certificates  by  their  directors.4 

5.  The  more  effectual,  and  at  present  the  more  usual,  remedy 
against  corporations  for  refusing  to  allow  the  transfer  of  stock  upon 
their  books  into  the  name  of  the  real  owner  is  by  bill  in  equity. 
And  in  one  case,5  where  the  party  whose  stock  had  been  allowed  by 
the  bank  to  be  transferred  into  the  names  of  those  who  had  pur- 
chased it  under  forged  powers  of  attorney  sought  .redress  by  an 
action  at  law,  the  court  said,  "  We  cannot  do  justice  to  this  plain- 
tiff unless  we  hold  that  the  stocks  are  still  his,"  and  therefore  de- 

2  Regina  v.  General  Cemetery  Co.,  6  El.  &  Bl.  415;  s.  c.  36  Eng.  L.  & 
Eq.  126. 

3  Reg.  v.  Mid.  Counties  &  Sh.  Junction  Raihv.  Co.,  15  Ir.  Com.  Law,  514, 
525;  s.  c.  9  Law  T.  (N.  S.)  151.  But  the  practice  of  compelling  the  registry  of 
transfers,  by  mandamus,  seems  well  established,  even  where  they  are  not  of  a 
character  to  induce  the  most  favorable  consideration,  as  where  it  was  a  transfer  to 
a  pauper  to  enable  the  transferror  to  get  rid  of  liability,  it  being  intended  to  be 
out  and  out,  with  no  secret  trust  for  the  transferror.  lb.  The  transfer  of  shares 
for  special  purposes  is  so  frequent,  and  the  motives  and  occasions  are  so  various, 
that  it  could  not  be  expected  to  give  an  abstract  of  all  the  cases.  As  a  general 
rule,  one  who  understandingly  consents  to  have  shares  transferred  into  his  name 
upon  the  public  registry  of  shares,  must  be  content  to  assume  all  the  responsi- 
bility towards  the  public  and  the  other  shareholders  not  conusant  of  the  special 
contract,  which  any  other  shareholder  would  incur.  But  as  between  the  com- 
pany and  the  purchaser  there  may  be  .•  pecial  grounds  of  relief.  Coleman  ex 
parte,  1  De  6.,  J.  &  Sm.  495;  Grady  ex  parte,  id.  488;  Barrett  ex  parte,  10 
Jur.  (N.  S.)  711 ;  Saunders  e     parte,  id.  246  ;  s.  c.  4  Giff.  179. 

Any  transaction  of  this  kind  will  not  be  disturbed,  after  considerable  lapse  of 
time.  Spackinan  ex'parte,  1  De  G.,  J.  &  Sm.  504- ;  s.  c.  10  Jur.  (N.  S.)  911  ; 
Lane  ex  parte,  id.  25 ;  Spackinan  ex  parte,  reversed,  11  Jur.  (N.  S.)  207.  In 
Houldsworth  v.  Evans,  L.  R,  3  IIo.  Lds.  263,  it  is  distinctly  declared,  as  the 
settled  doctrine  of  the  English  courts,  that  any  arrangement  between  the  com- 
pany and  the  shareholders,  although  irregularly  entered  into,  as  between  the 
directors  and  the  shareholders,  will  nevertheless  bind  the  i  ody  of  the  share- 
holders, unless  they  take  active  steps  to  have  it  set  aside  within  some  short 
and  reasonable  time  after  it  becomes  known  to  them.   Post,  §  135,  pi.  6,  and  note. 

4  East  Wh.  M.  M.  Co.  in  re,  3;!  Beav.  119. 

5  Davis  v.  Bank  of  England,  2  Bing.  303;  post,  §  241. 

[*147] 


158  TRANSFER   OP  SHARES.  PART  II. 

nied  the  action  for  the  value  of  the  stocks,  but  allowed  a  recovery 
for  the  dividends  which  had  been  declared  after  the  transfer. 

6.  And  there  is  the  same  difficulty  in  compensating  the  purchaser 
of  stocks,  where  a  transfer  on  the  books  has  been  denied  in  an 
action  at  law.  In  some  cases  this  has  been  attempted  to  be  done 
by  allowing  the  party  to  recover  the  highest  market  price  of  the 
stock  between  the  refusal  to  transfer  and  the  trial.  But  the  only 
rule  at  all  analogous  to  settled  principles  seems  to  be  that  the 
corporation  shall  pay  the  value  of  the  stock  at  the  date  of  their 
refusal  to  transfer  it,  as  that  is  the  time  when  the  corporation 
became  in  default,  and  when  by  said  default  the  stock,  as  between 
the  parties,  became  theirs.6  The  question  of  the  effect  of  forged 
and  fraudulent  transfers  is  very  ably  discussed  by  the  Court  of 
Chancery  Appeal  in  Tayler  v.  Great  Indian  Peninsular  Railway.7 

7.  In  a  somewhat  recent  case,8  one  A.  authorized  a  stock-broker  to 
purchase  for  him  some  shares  in  a  company,  and  paid  the  pur- 
chase-money, and  the  shares  were  duly  transferred  to  him,  by  writ- 
ten instrument,  but  his  name  was  not  registered.  Afterwards  the 
stock-broker,  on  a  false  pretence,  prevailed  on  A.  to  cancel  his 
signature  to  the  instrument  of  transfer,  and  to  sign  a  deed  of  transfer 
to  him,  the  broker  ;  A.  believing,  on  the  representation  of  the  broker, 
that  he  was  executing  a  fresh  transfer  to  himself  in  the  place  of  that 
which  had  been  cancelled.  The  broker  transferred  them  to  an  in- 
nocent holder  as  security  for  £5,000,  money  lent  a  short  time  be- 
fore. Held,  on  a  bill  filed  by  A.,  that  the  original  transfer  to  him 
must  have  its  effect ;  and  that  the  shares  were  thereby  vested  in 
him,  and  still  remained,  notwithstanding  the  cancellation  and  sub- 
s' •<|iient  transactions. 

6  Pinkerton  v.  M.  &  L.  Railw.,  1  Am.  Law  Reg.  (N.  S.)  96 ;  s.  c.  42  N.  H. 
424. 

7  5  Jur.  (X.  S.)  1087  ;  s.  c.  4  De  G.  &  J.  559.     See  post,  §§  46,  241.     And 
Building  Af-Mxiation  v.  Sendemeyer,  50  Penn.  St.  67. 

■  Donaldson  v.  Gillot,  12  Jur.  (N.  S.)  969;  s.  c.  L.  R.  3  Eq.  274. 
[*147] 


§43. 


WHEN    CALLS    BECOME    PERFECTED. 


159 


♦SECTION     XII. 


When   Calls  become  Perfected. 


1.  Calls  are  made  when  the  sum  is  assessed, 

notice  may  be  given  afterwards. 

2,  3.  Directors  the  proper  authority  to  make 

calls. 


4.   The    manner   of  giving    notice    and    of 
proof 


§43.  1.  The  English  statute  of  1845,  called  the  Companies' 
Clauses  Consolidation  Act,  requires  all  calls  to  be  paid  before  any 
valid  transfer  can  be  made.  Under  this  statute,,  and  similar  pro- 
visions in  special  charters,  it  has  often  been  made  a  question,  when 
a  call  may  be  said  to  be  made.  It  seems  to  be  considered  that  the 
word  call  in  this  connection,  may  refer  to  the  resolution  of  the 
directors,  by  which  a  certain  sum  is  required  to  be  paid  to  the  com- 
pany, by  the  shareholders,1  or  secondly  to  the  notice  to  the  share- 
holders of  the  assessment,  and  the  time  and  place  at  which  they 
will  be  required  to  make  payment,  and  the  amount  to  be  paid. 
But  it  seems  finally  to  be  settled,  that  the  company  are  not  obliged 
to  regard  any  transfer,  made  after  the  resolution  of  the  directors, 
making  the  assessment,  which  need  not  specify  the  time  of  pay- 
ment, but  that  may  be  determined  by  a  subsequent  act  of  the 
board.2 

1  Ex  parte  Tooke,  In  re  The  Londonderry  and  Coleraine  Railw.  Co.,  6  Railw. 
C.  1  (1819)  ;  North  American  Colonial  Association  of  Ireland  v.  Bentley,  19 
L.  J.  (Q.  B.)  427;  15  Jur.  187. 

A  resolution  of  the  board  of  directors  requiring  the  stockholders  to  pay  an 
instalment  of  ten  per  cent  every  thirty  days,  on  all  cash  subscriptions,  until  the 
whole  is  paid,  and  that  due  notice  thereof  be  gi\en,  is  admissible  evidence  of 
calls  for  the  whole  subscription.  It  was  here  considered  that  the  words  "  month," 
and  "  thirty  days,"  used  in  different  portions  of  the  act,  must  be  considered  of 
the  same  import.  Heaston  v.  Cincinnati  &  C.  R.  R.,  1G  Ind.  275;  Sands  v. 
Sanders,  26  N.  Y.  239. 

2  Great  North  of  England  Railw.  Co.  v.  Biddulph,  2  Railw.  C.  401  ;  s.  c. 
7  M.  &  W.  243;  Newry  and  Enniskillen  Railw.  Co.  v.  Edmunds.  5  Railw.  C. 
275;  s.  c.  2  Exch.  118,  122.  Parke,.  B.,  in  the  Ambergate,  &c,  and  Eastern 
Junction  Railw.  Co.  v.  Mitchell,  G  Railw.  C.  235;  s.  c.  4  Exch.  510;  Regina  v. 
Londonderry  &  Coleraine  Railw.  Co.,  13  Q.  B.  998. 

Unless  there  is  something  in  the  subscription,  or  the  charter  and  by-laws  of 
the  company  requiring  notice  of  calls,  or  making  the  subscription  payable  upon 
calls,  it  is  said  in  Lake  Ontario,  A.  &  N.  Y.  v.  Mason,  1G  N.  Y.  451,   that  it  is 

[*148] 


100  TRANSFER  OF  SHARES.  TART  II. 

•j.   Ii  seems  the  directors,  and  not  the  company,  are  the  proper 
parties  to  make  calls,  under  the  English  statutes. 

3.  This  semis  to  have  been  decided  upon  the  general  ground  of 
the  authority  of  the  directors.8 

1.  The  question  of  what  shall  amount  to  a  good  call,  and  how 
the  Bame  may  l>e  shown  in  court,  is  considerably  examined  in  Miles 
v.  Bough.4  It  is  here  decided,  that  no  person  could  be  sued  lor 
non-payment  of  a  call  till  he  had  received  due  notice  thereof, 
although  the  statute  did  not  require  notice  in  express  terms;  that 
an  order  to  pay  the  money  at  a  given  broker's  was  a  good  call ; 
that  in  the  declaration  it  was  sufficient  to  allege  that  the  calls  were 
made  and  the  defendant  duly  notified,  without  further  specification 
of  particulars  ;  and  that  the  jury  may  infer  sufficient  notice  from 
the  fact  of  an  express  promise  to  pay,  notwithstanding  it  appeared 
hat  a  defective  notice  had  been  sent,  unless  it  appeared  that  was 
the  only  notice  given,  when  the  case  must  be  decided  upon  the 
sufficiency  of  the  notice  in  fact  given. 

not  indispensable  that  notice  of  calls  should  be  given  the  subscribers  before  suit. 
But  this  seems  contrary  to  the  general  course  of  decision  upon  the  point,  and 
soniewhal  at  variance  with  the  idea  of  a  call,  or  assessment  upon  subscriptions  to 
stock.  And  such  seems  to  lie  the  general  understanding  of  the  rule  in  the 
American  courts.  But  these  questions  will  depend  very  much  upon  the  special 
provisions  of  the  statutes,  in  the  different  states,  by  which  the  matter  is  controlled, 
and  somewhat  upon  the  special  terms  of  the  contract  of  subscription.  Heaston 
v.  Cincinnati  &  ('.  R.  R.  1G  Ind.  275.  Thus,  in  the  present  case  it  was  held  the 
pal  railway  law  of  Indiana  did  require  notice  and  a  personal  demand  before 
proceeding  to  forfeit  the  stock,  but  not  before  suit  to  recover  instalments  ;  that  as 
to  calls  the  statute  required  the  subscribers  to  take  notice  of  the  action  of  the  direc- 
tors. It  is  further  said,  that  where  the  articles  of  association  or  the  preliminary 
articles  of  subscription,  or  both  combined,  contain  an  undertaking  to  pay  the  amount 
subscribed  on  certain  terms  and  conditions,  an  action  will  lie  to  enforce  the  stipu- 
lations upon  proof  of  the  subscription  and  the  performance  of  the  conditions. 
'  Am  tf.  &  I!.  &   Eastern  Junction  Railw.  Co.  v.  Mitchell,  4  Exch. 

Ch.  B.  "The  next  objection  is,  that  the  directors  made  these 
calls;  lint  they  were  competent  to  do  so,  as  they  may  do  all  things,  except  such 
as  are  !■>  In-  dune  by  the  shareholders  at  a  general  meeting;  and  there  is  nothing 
in  the  act  which  makes  it  ne<  essary  that  the  company  should  make  calls  at  a 
general  meeting." 

.  B.  "The  director-  may  exercise  all  the  powers  of  the  company  ex- 
cept those  which  are  to  be  exercised  by  the  company  at  their  general  meeting, 
and  the  power  of  making  calls  is  not  such  a  power  as  is  required  to  be  so 
exerci 

1  :;  Q.  B.  845.     Defective  notice  by  publication  is  not  aided  by  personal  notice 
of  a  shorter  tune.     .Sands  v.  Sanders,  26  N.  Y.  239. 
[*14'.»J 


§  44.     TRANSFER  BY  DEATH,  INSOLVENCY,  OR  MARRIAGE.      161 

♦SECTION     XIII. 
Transfer  by  Death,  Insolvency,  or  Marriage. 


5.  Stock  in  trust  goes  to  new  trustees. 

6.  Assignees  of  insolvents  not  liable  for  the 

debts  of  the  company, 

7.  Effect  of  marriage  of  feme  sole. 


1.   Mandamus  lies  to  compel  the  registry  of 
successor. 

3.  In  case  of  death,  personal  representative 

liable  for  calls. 

4.  Notice  requisite  to  perfect  the  title  of  mort- 

gagee. 

§  44.  1.  The  title  to  shares  in  a  railway  is  liable  to  transfer  by 
the  death,  bankruptcy,  or  insolvency  of  the  proprietor,  or  by  mar- 
riage of  the  female  owner  of  such  shares.  In  such  case  the  Eng- 
lish statute  requires  a  declaration  of  the  change  of  ownership,  to 
be  filed  with  the  secretary  of  the  company,  and  the  name  of  the 
new  owner  is  thereupon  required  to  be  entered  upon  the  register 
of  shareholders.  A  mandamus  will  lie  to  compel  the  clerk  to  make 
the  proper  entry  in  such  case.1 

2.  These  incidents  are  so  much  controlled  by  local  laws,  in  dif- 
ferent jurisdictions,  that  it  would  scarcely  comport  with  our  object 
to  state  more  than  the  general  principles  affecting  them.  In  most 
of  the  United  States  all  property  (especially  personal  estate  as 
railway  shares),  in  the  first  instance,  upon  the  decease  of  the  pro- 
prietor, vests  in  his  personal  representative,  in  trust,  first  for  the 
payment  of  debts,  and  afterwards  for  legatees,  or  in  default  of 
them,  the  heirs  of  such  proprietor. 

3.  And  so  far  as  regards  voting  upon  such  shares,  the  title  of 
the  executor  or  administrator  will  ordinarily  be  sufficient.  Before 
the  name  of  the  executor  or  administrator  is  entered  upon  the 
books  of  the  company,  as  a  shareholder,  the  estate  only  could  be 
held  liable  for  calls  probably,  and  perhaps  the  same  rule  of  liability 
would  obtain  after  that.2     But  in  general  where  shares  in  a  joint- 

1  Rex  v.  Worcester  Canal  Company,  1  M.  &  R.  529. 

?  Fyler  v.  Fyler,  2  Railw.  C.  873;  s.  c.  3  Beav.  550;  Jacques  v.  Chambers, 
2  Coll.  (C.  C.)  435  ;  s.  C.  4  Railw.  C.  499.  But  the  administrator  or  other  personal 
representative  of  a  deceased  shareholder,  may,  under  the  recent  English  statute, 
the  Common-law  Procedure,  maintain  an  action  against  the  company  for  refusal 
to  register  his  name,  as  successor,  to  the  title  to  the  shares,  and  after  having  re- 
covered damages,  he  is  entitled  to  a  mandamus  to  compel  the  company  to  register 
his  name.  He  is  also  entitled  to  the  prerogative  writ  of  mandamus  in  such  cases 
at  common  law.  Norris  v.  The  Irish  Land  Co.,  8  El.  &  Bl.  512  ;  s.  c.  30  Law 
Times,  132. 

11  [*150] 


162  TRANSFER    OF    SHARES.  PART  II. 

stock  *  company  are  bequeathed  specifically,  the  legatee  takes  them 
subject  to  all  future  calls.3  But  where  the  payment  of  future  calls 
is  indispensable  to  bring  the  shares  into  the  state  in  which  the 
testator  regarded  them  in  his  will,  such  calls  should  be  paid  by 
the  estate.4 

4.  In  case  of  death  or  insolvency,  the  title  of  a  mortgagee  first 
notified  to  the  company,  will  commonly  have  priority.5  Notice  to 
the  company  is  necessary  to  perfect  the  title  of  a  mortgagee,  in  case 
of  bankruptcy  or  insolvency.6 

5.  As  to  the  title  of  the  bankrupt,  all  shares  standing  upon  the 
register  of  the  company  in  his  name  will  be  regarded  as  under  his 
control,  order,  and  disposition,  and  will,  under  the  English  statutes, 
go  to  the  assignees.7  But  stock  in  any  incorporated  company 
standing  in  the  name  of  the  bankrupt  as  trustee,  is  to  be  trans- 
ferred by  the  assignee  to  the  name  of  new  trustees,  and  a  court  of 
chancery  will  so  order.8 

6.  The  assignees  of  an  insolvent  estate,  a  portion  of  whose  assets 
consists  of  shares  in  a  manufacturing  corporation,  are  not  liable 
under  special  statutes,  making  shareholders  liable  for  the  debts  of 
the  corporation.  That  is  a  provision  of  positive  law,  and  is  to  be 
construed  strictly.9 

7.  The  marriage  of  a  feme  sole,  being  the  owner  of  shares,  will 
have  the  effect  to  transfer  them  into  the  control  of  the  husband, 
the  same  as  any  other  personal  estate,  unless  where  it  is  provided 
otherwise  by  statute,  or  the  husband  chooses  to  leave  them  still 
under  the  control  of  the  wife.10 

3  Blount  v.  Ilipkins,  7  Sim.  43,  51 ;  Jacques  v.  Chambers,  2  Coll.  435  ;  Clive 
V.  I  live.  Kay,  600;  Wright  v.  Warren,  4  De  G.  &  Sm.  367;  Adams  v.  Ferick, 
26  Beav.  384. 

4  Armstrong  v.  Burnet,  20  Beav.  384. 

1  dimming  p.  Prescott,  2  Yo.  &  Coll.  Eq.  Exch.  488. 

*  lint  wln-re  all  parties  are  partners,  notice  will  sometimes  be  implied.  Ex 
parte  Waitman,  2  Mont.  &  Ayr.  364;  Duncan  v.  Chamberlayne,  11  Simons, 
L28;   Ettj  v.  Bridges,  2  Yo.  &  Coll.  486. 

7  Bhelford,  L18-121. 

H  Ex  parte  Walker,  10  Law  J.  Bank.  3. 

9  Gray  v.  Coffin,  9  <  lush.  192. 

10  Schouhr  Dom.  Bel.  Ill  ei  seq.  and  cases  cited;  Richardson  v.  Merrill,  32 
Vt.  27  and  cases  cited. 

[*151] 


§45. 


LEGATEES    OF    SHARES. 


163 


SECTION    XIV. 


Legatees  of  Shares. 


1.  Entitled    to    election,    interest,   and    new 

shares,  but  not  to  bonds. 

2.  Shares  owned  at  date  of  will  pass,  although 

converted  into  consolidated  stock. 


3.  -  Consolidated  stock  subsequently  acquired 
will  not  pass. 


§  45.  1.  Legatees  of  railway  shares  have  the  election  out  of 
which  class  of  shares  their  legacy  shall  be  paid,  when  there  is  more 
*  than  one  class  of  the  same  description  found  in  the  will.  And 
they  are  entitled  to  the  income  of  the  shares,  after  the  death  of  the 
testator,  and  to  receive  any  advantage,  by  way  of  new  shares  result- 
ing from  the  ownership  of  the  shares.1  But  a  specific  legatee  of 
shares  is  not  entitled  to  a  bonus  on  such  shares,  declared  after  the 
decease  of  the  testator,  but  arising  out  of  moneys  due  the  com- 
pany from  the  testator,  and  which  claim  was  compromised  by  his 
executors,  but  such  bonus  belongs  to  the  general  fund  of  personal 
estate.2  And  such  legatee  must  bear  the  calls  which  are  made 
after  the  testator's  death,  unless  there  is  something  in  the  will  to 
show  a  different  intent.3 

2.  A  bequest  of  the  testator's  railway  shares,  of  which  he 
should  be  possessed,  at  his  decease,  was  held  to  pass  such  rail- 
way shares  specifically  named  in  the  will  as  the  testator  had  at 
the  date  of  his  will,  although  subsequently  converted  into  con- 
solidated stock  of  the  same  company,  by  a  resolution  of  the 
company. 

3.  But  that  other  consolidated  stock  of  the  same  company  owned 
by  testator  at  his  decease,  did  not  pass  under  the  will,  the  same 
having  been  purchased  after  the  execution  of  his  will.4 

1  Jacques  v.  Chambers,  2  Coll.  (C.  C.)  435 ;  8.  c.  4  Railw.  C.  205 ;  Tanner  v. 
Tanner,  5  Railw.  C.  184;  s.  c.  11  Beav.  69.  And  it  is  held  in  this  last  case, 
that  upon  a  bequest  of  railway  shares  and  all  right,  title,  and  interest  therein, 
money  paid  beyond  the  calls  will  pass  to  the  legatee. 

2  Maclaren  v.  Stainton,  27  Beav.  460  ;  s.  c.  6  Jur.  (N.  S.)  360 ;  Loch  v.  Ven- 
ables,  27  Beav.  598 ;  s.  c.  6  Jur.  (N.  S.)  238. 

3  Day  v.  Day,  1  Drew.  &  Sm.  261 ;  s.  c.  6  Jur.  (N.  S.)  365. 

4  Oakes  v.  Oakes,  9  Hare,  666. 

[*152] 


164 


TRANSFER    OF    SHARES. 


PART  II. 


SECTION     XV. 


Shares  in  Trust. 


■  y  may  safely  deal  with  regis- 
ten  </  owner. 

quity  will  protect  the  rights  q/"cestuis 
que  trust. 


\  ,y  a.  '1.  I  >iscnssion  of  the  rights  of  cestuis 
que  trust  in  stock  certificates. 


8  16.  1.  By  the  English  statute,  railway  companies  are  not 
bound  to  see  to  the  execution  of  trusts  in  the  disbursement  of 
their  dividends,  but  are  at  liberty  to  treat  the  person  in  whose 
*  name  the  shares  are  registered  as  the  absolute  owner.  It  would 
seem  that  in  the  case  of  the  bankruptcy  of  a  shareholder  in  a  joint- 
stock  company,  a  court  of  equity  will  sometimes  protect  trust 
funds,  although  registered  in  the  name  of  the  bankrupt,  both  from 
the  claim  of  the  assignee  and  the  company,  who  have  made  ad- 
vances to  the  nominal  owner,  upon  the  faith  of  his  being  the  true 
owner,  but  without  any  pledge  of  the  stock.1 

2.  In  general,  in  this  country,  it  is  believed  railway  companies 
will  be  protected  in  dealing  bona  fide  with  the  person  in  whose 
name  shares  are  registered  on  the  books  of  the  company,  as  the 
absolute  owner,  notwithstanding  any  knowledge  they  may  have  of 
the  equitable  interest  of  third  parties. 

3.  But  there  can  be  no  question,  a  court  of  equity  will  always 
protect  the  interest  of  a  cestui  que  trust,  when  it  can  be  done  with- 
out the  violation  of  prior  or  superior  equities,  which  have  bona  fide 
attached. 

1  Pinkett  V.  Wright,  2  Hare,  120.  This  is  a  very  elaborate  opinion  of  the 
learned  Vice-Chancellor  Wigram,  upon  the  subject  of  protecting  the  interest  of 
cesiii-  the    tock  of  a  banking  company,  standing  in  the  name  of  a 

trustee  who  had  become  bankrupt.  The  trustee  was  also  the  proprietor  of  shares 
in  his  own  ri^'lit.  all  standing  in  his  name,  without  any  tiling  on  the  books  of  the 
comp  iisb  which  were  trust  funds.     It  was   held  that  the  trustee 

most  be  presumed  to  have  pledged  such  stock  as  belonged  to  himself  and  not 
tbat  ol  bit  que  ti-ust,  and   that  shares  which  stood   in   the  name   of  the 

truste  at  the  time  of  the  bankruptcy,  and  thenceforward  remained  in  his  name, 
might  fairly  be  presumed  to  be  identical  with  those  in  which  the  trust  funds  were 
invested,  the  number  of  shares  being  the  same.  Notice  to  he  company  is  indis- 
in  equitable  mortgage  of  railway  shares.  Ex  parte  Boulton 
v.  Bkelehley,  29  Law  Tim  s,  71 ;  s.  c   1  De  G.  &  J.  173. 

[•153] 


§  46  a.  TRANSFER   EXEMPT    FROM    CREDITORS.  165 

4.  It  was  recently  held  after  careful  examination  of  the  author- 
ities,2 that  the  holder,  of  stock,  as  trustee,  has  prima  facie  no 
right  to  pledge  it  as  security  for  his  private  deht,  and  one  who 
accepts  the  pledge  under  such  circumstances,  acquires  no  rights 
against  the  cestui  que  trust.  And  the  word  "  trustee  "  in  the  cer- 
tificate, in  connection  with  the  name  of  the  holder,  is  notice  to  all 
persons  to  whom  the  certificate  may  be  delivered,  sufficient  to  put 
the  party  on  inquiry,  as  to  the  nature  of  the  holder's  title,  and  the 
character  and  extent  of  the  trust. 


*  SECTION    XVI. 

The   extent   of    Transfer    requisite   to   exempt  from   claim   of 

Creditors. 

1.  How   transfer  of  stock  perfected  as  to  i  3,4.  In  some  of  the  states  no  record  required. 

creditors. 

2.  Reasonable  time  allowed  to  record  transfer. 


n.  3.   Question  further  considered. 


§  46  a.  1.  The  question  of  what  constitutes  a  valid  transfer  of 
shares  in  a  joint-stock  corporation,  so  as  to  exempt  them  from 
attachment  and  levy  by  creditors  of  the  transferror,  is  consider- 

2  Shaw  v.  Spencer,  8  Am.  Law  Reg.  (N.  S.)  299  ;  s.  c.  100  Mass.  382.  The  de- 
cision here  falls  short,  probably,  of  what  the  authorities  will  justify,  if  the  case  had 
required  it.  But  the  usages  of  the  Stock  Exchange,  whereby  trustees  are  enabled 
to  defraud  their  cestuis  que  trust,  for  the  benefit  of  speculators,  receives  a  moder- 
ate but  very  just  rebuke.  1.  By  declaring  that  certificates  of  stock  in  blank  are 
not  to  be  regarded  as  negotiable  instruments,  cutting  off  all  equities  of  bona  fide 
parties  in  interest,  s.  P.  Sewall  v.  Boston  Water  Power,  i  Allen,  272.  2.  By 
declaring  that  no  usage  or  custom  of  brokers,  or  course  of  business,  can  avail  to 
defeat,  or  qualify,  the  established  rules  of  law,  recognized  in  courts  of  equity. 
The  following  significant  intimation  of  the  court  is  worthy  of  repetition  :  "The 
circumstance  that  stock  certificates,  issued  in  the  name  of  one  as  trustee,  and  by 
him  transferred  in  blank,  are  constantly  bought  and  sold  in  the  market  without 
inquiry,  is  likewise  unavailing.  A  usage  to  disregard  one's  legal  duty,  to  be 
ignorant  of  a  ride  of  law,  and  to  act  as  if  it  did  not  exist,  can  have  no  standing 
in  the  courts.''''  We  should  be  rejoiced  to  persuade  ourselves,  that  we  had  reached 
a  point  where  the  dishonest  practices  of  trade  could  no  longer  receive  counte- 
nance by  the  courts,  either  directly  or  indirectly.  We  regard  this  case  as  falling 
far  short  of  the  truth,  but  as  it  is  all  which  the  case  required,  it  is  gratifying  to 
believe  the  courts  are  moving  in  the  right  direction,  and  may  ultimately  be  able 
to  convince  men  who  shut  their  eyes  to  exclude  the  light,  that  they  need  not  feel 

[*154] 


166  TRANSFER  OF  SHARES.  PART  II. 

ably  discussed  in  a  case  in  New  Hampshire  by  a  judge  of  large 
experience,  and  the  result  reached,  that  upon  a  pledge  of  stock  in 
a  railway  corporation  in  New  Hampshire,  there  should  be  such  de- 
livery  as  the  nature  of  the  thing  is  capable  of,  and  to  be  good 
:ist  a  subsequent  attaching  creditor  the  pledgee  must  be 
clothed  with  all  the  usual  muniments  and  indicia  of  ownership ; 
that  by  the  laws  of  New  Hampshire,  a  record  of  the  ownership  of 
shares  must  be  kept,  by  domestic  corporations,  within  the  state, 
and  by  officers  resident  there;  and  that  on  the  transfer  of  stock 
the  delivery  will  not  be  complete,  as  to  creditors,  until  an  entry  is 
made  upon  such  stock-record,  or  it  be  sent  to  the  office  for  that 
purpose,  and  the  omission  thus  to  perfect  the  delivery  will  be 
prima  facie,  and  if  unexplained  *  conclusive  evidence  of  a  secret 
trust,  and  therefore,  as  matter  of  law,  fraudulent  and  void  as  to 
creditors.1 

2.  But  in  the  case  last  cited  it  is  said  that  when 2  the  transfer 
is  made  at  a  distance  from  the  office  and  the  old  certificate  surren- 
dered and  a  new  one  given  by  a  transfer  agent  residing  in  a  neigh- 
boring state,  proof  that  the  proper  evidence  of  such  transfer  was 
sent  by  the  earliest  mail  to  the  keeper  of  the  stock  record  to  be 
duly  entered,  although  not  received  until  an  attachment  had  inter- 
vened, would  be  a  sufficient  explanation  of  the  want  of  delivery 
and  the  transfer  would  be  good  against  the  creditor.  Any  unrea- 
sonable delay  in  perfecting  the  record  title  to  such  shares  leaves 
them  liable  to  the  claims  of  creditors. 

3.  But  where  the  charter  of  the  company  or  the  general  laws  of 
the  state  contain  any  specific  restriction  or  requirement  in  regard 
to  the  transfer  of  shares,  it  must  be  complied  with  or  the  title  will 
not  pass.2 

4.  In  a  case  in  New  Jersey,8  it  seems  to  be  considered  that 

surprise,  to  find  their  blind  booty  turning  to  ashes  in  their  grasp;  and  the  in- 
terests "1  the  widow  and  the  fatherless  finally  regarded  as  of  more  value,  in  the 
publir  esteem,  than  the  accumulation  of  gain,  by  indirection  and  evasion,  intended 
to  defraud  them  of  their  last  penny. 

1  Pinkerton  v.  Manchester  &  Lawrence  Railw.,  1  Am.  Law  Keg.  (N.  S.)  9G ; 
8.  c.  42  X.  II.  424. 

*  Fisher  v.  Eases  Bank,  5  Gray,  373;  Sabin  v.  Bank  of  Woodstock,  21  Vt. 
362  :   Pittsburgh  &  Connellsville  R.  Co.  v.  Clarke,  29  Penn.  St.  146. 

3  Broadway  Bank  v.  McElrath,  2  Beasley,  24.  We  think  it  proper  to  say, 
that  there  is  considerable  difference  in  the  decisions  of  the  different  states  as  to 
the  point  of  time  from  which  the  transfer  of  equitable  titles  is  to  be  reckoned,  as 

[•155] 


§46  a.  TRANSFER   EXEMPT   FROM   CREDITORS.  167 

nothing  more  is  required  to  make  an  effectual  transfer  of  stock  in 
a  bank,  even  as  against  creditors,  than  an  assignment  of  the  certif- 
icates and  a  delivery  to  the  assignee,  and  that  this  will  be  regarded  as 
effectual  against  an  attaching  creditor  without  notice,  even  where 
the  charter  of  the  company  declares  the  stock  personal  estate,  and 
provides  that  "  it  shall  be  transferable  upon  the  books  of  the  cor- 
poration," and  also,  "  that  books  of  transfer  of  stock  shall  be  kept, 
and  shall  be  evidence  of  the  ownership  of  said  stock  in  all  elections 
and  other  matters  submitted  to  the  decision  of  the  stockholders." 

between  purchasers  for  value  and  creditors.  It  is  generally  considered  that  the 
transfer  takes  effect  from  the  date  of  notice  to  the  trustee,  who  holds  the  legal 
title,  subject  to  all  equities,  and  these  do  not  attach  ordinarily  until  after  notice 
brought  home  to  the  trustee.  Some  of  the  states  regard  the  equitable  rights  of 
the  purchaser  as  dating  from  the  period  of  the  actual  purchase,  provided  notice 
to  the  trustee  be  given  within  reasonable  time'  after.  We  have  discussed  the 
question  and  the  cases,  to  some  extent,  in  Rice  v.  Courtis,  32  Vt.  460 ;  s.  c.  1 
Redf.  Am.  Railw.  Cases,  111 ;  1  Story  Eq.  Jur.  400  b. 

[•155] 


L68 


ASSESSMENTS   OR   CALLS. 


PART  II. 


CHAPTER     IX. 


ASSESSMENTS   OR   CALLS. 


SECTION    I. 


Party  liable  for   Calls. 


1.   The  party  upon  the  register  liable  for  calls. 
'J    /.     krupts  /'  main  liable  for  mils. 
3.  Cestuis  que  trust  not  liable  for  calls  in 
law  or  equity. 


Trustee  compelled  to  pay  for  shares. 
One  on  registry  may  show  his  name  im- 
properly  placed  there. 


§  47.  1.  It  seems  to  be  settled  law  that  the  registered  owner  of 
railway  shares  is  liable  for  all  calls  thereon,  so  long  as  his  name 
remains  upon  the  register.1  The  effect  of  the  transfer  of  railway 
scrip  is  only  to  convey  an  equitable  interest  in  the  shares,  with  the 
right  to  have  the  shares  formally  assigned  to  him,  and  his  name 
entered  upon  the  register  as  a  shareholder.1 

2.  In  case  of  bankruptcy,  the  bankrupt  remains  liable  for  all 
calls  unless  the  names  of  the  assignees  are  registered  on  the  books 


1  Midland  Great  Western  Railw.  Co.  v.  Gordon,  5  Railw.  C.  76  ;  s.  c.  16  M. 
&  W.  804;  Mangles  v.  Grand  Collier  Dock  Co.,  10  Sim.  519:  s.  c.  2  Railw.  C. 
359 ;  Sayles  v.  Blane,  14  Q.  B.  205 ;  s.  c.  6  Railw.  C.  79  ;  West  Cornwall  R.  v. 
Mowatt,  1")  Q.  B.  521.  In  this  case  it  was  said,  even  if  the  transaction  by  which 
the  title  to  the  stock  and  the  registry  of  defendant's  name  were  made,  were 
illegal,  it  could  not  avail  him  in  an  action  for  calls.  See  post,  §  236;  Long 
Island  R.  Co.,  19  Wend.  37;  Mann  v.  Currie,  2  Barb.  294;  Hartford  &  N.  H. 
It.  r.  Boorman,  12  Conn.  530;  Mann  v.  Cooke,  20  Conn.  178;  Rosevelt  v. 
Brown,  11  N.  Y.  148.  The  registry-book  of  shareholders  is  prima  facie  evi- 
dence of  the  liability  to  calls,  of  those  whose  names  appear  upon  it,  although 
irregularly  kept.  Birmingham  R.  v.  Locke,  1  Q.  B.  256  ;  London  Grand  J.  R. 
v.  Freeman,  2  M.  &  (',.  606;  Same  v.  Graham,  1  Q.  B.  271;  Aylesbury  R.  v. 
Thomson,  2  Railw.  C.  668.  This  last  case  holds  that  the  purchaser  of  shares 
is  only  liable  for  calls  made  after  bis  name  is  upon  the  register.  The  company 
may,  by  its  charter,  and  probably  by  a  by-law,  provide  that  the  original  sub- 
scriber  shall  be  holden  for  all  calls,  or  until  a  certain  amount  is  paid  in.  Vicks- 
burg,  Shreveport,  iV  Texas  Railw.  v.  McKeen,  14  La.  Ann.  724. 

[♦156] 


§47  PARTY   LIABLE    FOR   CALLS.  169 

of  the  company,  as  this  is  not  regarded  as  a  debt  payable  in  future, 
and  which  may  be  proved  under  the  commission.2 

*  3.  The  trustee  of  shares,  whose  name  appears  upon  the  books  o 
the  company,  is  alone  liable  for  calls,  and  the  company  have  no 
remedy  in  equity  even  for  calls  against  the  cestui  que  trust.21  But  if 
a  shareholder  when  the  company  is  in  extremis  makes  a  colorable 
transfer  to  an  irresponsible  person,  it  has  been  held  it  will  not 
relieve  him  from  liability  to  contribute.4  But  in  the  absence  of 
fraud  or  mala  fides,  the  cestui  que  trust  cannot  be  subjected  to  a  call 
although  lie  may  be  compelled  to  indemnify  his  trustee.5  And  it 
seems  finally  to  be  settled  in  the  English  Court  of  Chancery,  that 
a  shareholder  may  transfer  his  shares  in  an  abortive  company, 
where  such  shares  pass  by  delivery,  to  an  insolvent  person,  for  the 
purpose  of  getting  rid  of  liability  to  contribute  to  its  responsibilities, 
provided  the  transaction  be  a  real  one,  and  not  a  false  or  hollow 
contrivance.6  But  where  the  transaction  exhibits  no  motive  except 
escape  from  the  liability  of  the  company,  and  especially  where  it 
transpires  after  the  company  is  publicly  declared  insolvent,  it  was 
held  it  will  be  regarded  as  merely  colorable  and  not  valid.7  But 
where  the  holder  of  shares  threatened  to  put  the  company  into  in- 

2  South  Staffordshire  R.  v.  Burnside,  2  Eng.  L.  &  Eq.  418;  8.  c.  5  Exch. 
129;  6  Railw.  C.  611. 

3  The  Newry,  W.  &  R.  R.  v.  JMoss,  4  Eng.  L.  &  Eq.  34 ;  s.  c.  14  Beav.  64. 
But  where,  in  winding  up  the  affairs  of  a  company,  the  name  of  one  of  the  mem- 
bers, who  had  obtained  his  certificate  since  the  expenses  were  incurred,  was 
placed  among  the  eontributories,  it  was  held  he  was  not  liable.  Chappie's  case, 
17  Eng.  L.  &  Eq.  516;  s.  c.  5  De  G.  &  S.  400.  Where  shares  were  pledged 
at  a  bank  as  security  for  a  loan,  and  the  name  of  the  bank,  or  of  the  chairman 
and  manager  of  the  bank,  was  entered  on  the  register  of  shareholders  simply  as 
holders  of  the  shares,  which  had  been  represented  as  fully  paid-up  shares,  at  the 
time  of  pledge,  it  was  held  that  they  were  not  liable  for  calls.  Guest  v.  W.  B. 
&  L.  Railw.,  Law  R.  4  C.  P.  9. 

4  Lund  ex  parte,  27  Beav.  465 ;  Hyam  ex  parte,  6  Jur.  (N.  S.)  181 ;  s.  c.  1 
De  G.  F.  &  J.  75.  See  also  De  Pass's  case,  4  De  G.  &  J.  5 14 ;  Chinnock  ex 
parte,  1  Johns.  (Eng.  Ch).  714;  post,  §  242. 

5  Electric  Tel.  Co.  v.  Bunn,  6  Jur.  (N.  S.)  1223. 

6  Mexican  &  South  Am.  Co.  in  re,  2  De  G.  F.  &  J.  302;  Slater  ex  parte,  12 
Jur.  (N.  S.)  242.  All  that  seems  to  be  required  is  that  the  transfer  be  absolute, 
or  "  out  and  out."  Bush's  case,  L.  R.  6  Ch.  App.  246.  And  even  the  fact  that 
the  transferror  guaranteed  the  transferee  against  future  calls  will  not  defeat  the 
effect  of  the  transfer.  Harrison's  case,  id.  286.  Even  the  most  suspicious, cir- 
cumstances will  not  defeat  the  transfer.  Master's  case,  7  id.  292,  which  is  the 
latest  decision.  7  Electric  Tel.  Co.  in  re,  30  Beav.  143. 

[*157] 


170 


ASSESSMENTS    OR   CALLS. 


PART  II. 


solvency  unless  the  directors  would  find  some  one  to  purchase  his  ■ 
shares  and  give  him  an  indemnity,  which  was  done  twelve  months 
before   the  company  became  insolvent,  it  was  held  to  he  a  valid 
transfer.8    Trustees  under  a  will  are  properly  made  contributories.9 

I.  The  trustee  into  whose  name  the  cestui  que  trust  had  caused 
shares  to  be  transferred  by  deed,  reciting  that  the  price  of  the  same 
bad  been  paid  to  the  vendor,  who  executed  the  deed,  may  never- 
theless  be  compelled  to  make  good  such  price  to  the  vendor,  if  it 
*  wen1  not  in  fact  paid,  although  he  accepted  the  transfer  in  the 
belief  that  it  had  been  paid.10 

5.  Notwithstanding  the  defendant's  name  appear  upon  the 
register  of  shares,  be  will  be  permitted,  in  a  suit  for  calls,  to 
bIiow  that  it  was  illegally  placed  there,  and  without  his  authority. 
But  a  purchaser  of  shares,  or  even  an  original  subscriber,  cannot 
be  sued  for  calls,  under  the  English  statute,  until  his  name  is 
placed  on  the  registry.11  But  one's  name  appearing  upon  the 
books  of  the  company  as  a  shareholder  is  prima  facie  evidence  of 
the  fact,  in  an  action  against  such  person  to  enforce  against  him 
the  personal  responsibility  of  a  stockholder  for  the  debts  of  the 
company.1'-  And  in  such  an  action  the  judgment  against  the 
corporation  is  prima  facie  evidence  of  its  indebtedness  as  against 
the  stockholder.12 


SECTION    II. 


Colorable   /Subscriptions. 


1.   Col",  iptions  valid. 

2   Directo  smaybt  compelled  to  register  them. 
:ir,  to  vary  the  written  subscrip- 
tion inadmi 


4.  Register  evidence  although  not  made  in  the 

time  prescribed. 

5.  Confidential  subscriptions  void. 

6.  Shares  cannot  be  issued  to  secure  debts  of 

company. 


^  4s     1.   Equity  will  not  restrain  a  railway  company  from  en- 
forcing calls,  by  action  at  law,  upon  the  ground  that  one  of  the 

9  Phoenix  Life  Assurance  Co.,  7  Law  T.  (N.  S.)  267. 

»  Drummond  ex  parte,  2  Gif.  189;  s.  c.  6  Jur.  (X.  S.)  908. 

10  Wilson  v.  Keating,  27  Beav.  121. 

11  Eodges  on  Railways,  101,  4th  ed. ;  Newry  &  Inniskillen  Railw.  v.  Edmunds, 
2  Exch.  lis. 

15  Hoagland  v.  Bell,  36  Barb.  57. 

[*158] 


§  48.  COLORABLE   SUBSCRIPTIONS.  171 

conditions  of  the  charter,  requiring  a  certain  amount  of  subscrip- 
tions of  stock  before  the  incorporation  took  effect,  had  not  been 
complied  with,  but  that  a  fraud  upon  the  provision  had  been  prac- 
tised by  means  of  colorable  subscriptions.  The  Court  of  Chancery 
regards  colorable  subscriptions,  made  in  the  course  of  getting  a  bill 
through  the  House  of  Lords  (to  comply  with  one  of  the  standing 
rules  of  that  house,  requiring  three-fourths  of  the  requisite  outlay 
to  be  subscribed  before  the  bill  passes),  to  be  binding  upon  the 
directors  and  managers,  who  make  the  same,  and  that  they  are  in 
fact  valid  and  binding  subscriptions,  although  such  subscriptions 
were  made  with  the  purpose  of  being  subsequently  cancelled,  and 
*  had  never  been  registered  upon  the  books  of  the  company,  or  any 
calls  made  upon  them. 

2.  It  is  within  the  proper  range  of  the  powers  of  a  court  of 
equity  to  compel  the  directors  to  register  such  shares,  and  enforce 
the  payment  of  calls  upon  them.1 

1  Preston  v.  Grand  Collier  Dock  Co.,  11  Sim.  327;  s.  c.  2  Railw.  C.  335; 
Mangles  v.  The  Same,  10  Sim.  519.  The  principle  of  these  cases  is  very  dis- 
tinctly recognized  in  the  case  of  Blodgett  v.  Morrill,  20  Vt.  509  ;  s.  c.  1  Redf. 
Am.  Railw.  Cases,  138,  and  it  lies  at  the  foundation  of  all  fair  dealing,  that  one 
is  bound  by  his  own  representations,  upon  which  he  had  purposely  induced  others 
to  act,  although  at  the  time  he  did  not  intend  to  be  himself  bound  by  them,  but 
expected,  through  favor,  to  be  relieved  from  their  performance.  See  also  Henry 
v.  Vermillion  R.  Co.,  17  Ohio,  187.  But  if  one  obtain  shares  in  a  distribution 
by  commissioners  by  fraud,  he  may  be  compelled,  in  equity,  to  surrender  them 
to  other  subscribers,  to  whom  they  would  have  been  awarded  but  for  such  fraud. 
Walker  v.  Devereaux,  4  Paige,  229 ;  s.  c.  1  Redf.  Am.  Railw.  Cases,  29. 

A  subscription  to  the  stock  of  a  railway  made  in  the  common  form  upon  the 
books  of  the  company,  the  subscriber  at  the  time  of  subscription  taking  the  fol- 
lowing writing,  signed  by  the  clerk  of  the  company,  by  order  of  the  direc- 
tors :  — 

"  In  consideration  that  Ebenezer  E will  subscribe,  for  thirty  shares  in  the 

White  Mountains  Railway,  said  company  agree  to  release  him  from  twenty-five  of 
said  shares,  or  such  portion  of  said  twenty-five  shares,  as  he  may  within  one  year 
elect  to  withdraw  from  his  subscription,  and  if  he  has  been  assessed,  and  has  paid 
any  thing  on  said  shares,  that  he  elects  to  be  released  from,  that  these  payments 
shall  be  allowed  him,  on  the  shares  that  he  retains,  and  that  the  treasurer  shall 
regulate  his  stock  accounts  and  assessments  accordingly,"  is  a  valid  subscription 
for  the  thirty  shares,  it  having  been  understood,  at  the  time  of  making  the  sub- 
scription, between  the  subscriber  and  the  directors,  that  tbe  same  was  to  be  held 
out  to  the  public,  as  a  bona  fide  subscription  for  the  thirty  shares,  and  no  dis- 
closure made  of  the  writing  given  to  the  subscriber. 

It  was  held  that  the  agreement  to  release  the  subscriber  was  a  fraud  upon 

[*159] 


172  ASSKSSMENTS   OR   CALLS.  PART  II. 

In  one  rase-  where  this  subject  came  under  discussion  in 
equity,  where  the  provisional  directors,  in  the  process  of  carrying 
a  bill  through  parliament,  proposed  to  the  contractor  that  he 
should  have  the  contract  for  the  company's  works  provided  he 
would  accept  payment  partly  in  shares,  the  number  to  be  settled 
by  the  company's  engineer;  but  contracted  for  him  to  sign  for 
a  sufficient  number  of  shares  to  make  up  the  amount  required 
by  the  standing  orders  of  parliament,  which  was  630  of  <£10 
each,  which  he  accordingly  subscribed  and  the  bill  passed  ;  *  but 
when  the  contract  was  closed  he  was  to  take  but  300  shares,  the 
scheme  being  abandoned  before  the  works  were  commenced,  it  was 
held  that  (he  arrangement  made  by  the  directors  with  the  con- 
tractor was  ultra  vires,  and  if  not  a  fraud  upon  the  orders  of 
parliament  ii  was  void  as  against  such  subscribers  as  were  not 
privy  to  it;  and  that  the  circumstance  of  the  contractor  having 
subscribed  the  deed  last  but  one,  and  the  last  subscriber  being 
privy  to  the  arrangement,  did  not  alter  the  rights  of  those  sub- 
Bcribers  who  were  not  privy  to  it;  and  that  the  contractor  was 
liable,  as  a  contributory,  for  the  entire  number  of  shares  for  which 
be  signed  the  deed. 

•"..  Oral  evidence  is  inadmissible  to  vary  the  terms  of  a  sub- 
scription to  the  stock  of  a  railway  unless  it  tend  to  show  fraud  or 
mistake.8     But  where  the   subscriber  is  really  misled,  and  induced 

other   subscribers,   and  void,   and   the    subscription   may  be   enforced.     White 
Mountains  Railw.  v.  Eastman,  34  N.  H.  124;  Downie  v.  White,  12  Wis.  176. 
>  Conn.   &  Pass.  Rivers  R.  v.  Bailey,  24  Vt.   465;  Mann  v.  Pentz,  2 
Sand.  ( !h.  257  :  Penobscot  &  Kennebec  R.  v.  Dunn,  31)  Maine,  601. 

2  North  Slii.l  Is  Quay  Co.  v.  Davidson,  4  Kay  &  J.  688. 

3  Wighl  r.  Shelby  Railw.,  16  B.  Mon.  5;  Blodgett  v.  Morrill,  20  Vt,  509; 
s.c.  1  Redf.  Am.  Railw.  Cases,  138;  Kennebec  &  Portland  R.  v.  Waters,  34 
Maine,  369.  Rut  mere  mistake,  or  misapprehension  of  the  facts,  by  the  sub- 
scriber, is  no  ground  of  relief  unless  it  amount  to  fraud  and  imposition,  brought 
about  by  some  agent  of  the  company.     Hence  when  one  subscribed  for  shares 

lilway,  under  the  mistaken  belief  that  he  might  forfeit  his  stock  at  will, 
and  1m-  do  further  liable,  he  was  held  liable,  notwithstanding  this  belief  was  the 

i  assurances  made  by  the  person  taking  the  subscription  at  the  time  of  its 
being  made,  that  such  were  the  terms  of  subscription  secured  by  the  charter, 
Sl"''»    •'<  g   founded   in  mistake,   and  not   wilfully  false.     Railroad 

Company  v.  Roderigues,  L0  Rich.  (S.  C.)  278;  N.  C.  Railw.  v.  Leach,  4  Jones 
Law,  340.  It  is  here  -aid.  that  one  of  the  commissioners,  in  taking  subscriptions 
t0  ''"'  -'  "' :  nl  a  railway  company,  has  no  right  to  give  any  assurances  as  to 
the  line  of  location  which  will  be  adopted.     And  if  the  location  is  different  from 

[*160] 


§48.  COLORABLE   SUBSCRIPTIONS.  173 

to  subscribe  for  stock,  upon  the  representation  of  a  state  of  facts 
in  regard  to  the  time  of  completing  the  road,  or  its  location,  made 
by  those  who  take  up  the  subscription,  and  in  good  faith,  and  upon 
proper  inquiry,  and  the  exercise  of  reasonable  discretion,  believed 
by  the  subscriber,  and  which  constitutes  the  prevailing  motive  and 
consideration  for  the  subscription,  and  which  proves  false,  it  would 
seem  that  the  contract  of  subscription  should  be  held  void,  both  in 
law  and  equity.4 

4.  When  the  statute  requires  the  registry  of  shares  to  be  made 
*  within  a  limited  time,  such  requirement  is  regarded  as  merely 
directory,  and  the  registry,  although  not  made  within  the  pre- 
scribed time,  will  still  be  competent  evidence,  and  to  the  same 
extent  as  if  made  within  the  time  required.5 

5.  Subscriptions  made  under  an  agreement  that  they  are  not  to 
be  binding  unless  a  specified  sum  is  subscribed,  are  not  valid  to 
bind  other  subscribers,  as  it  is  essential  that  there  should  be  no 
conditions  as  to  the  liability  of  any  of  the  subscribers  not  applicable 
to  all.  Confidential  subscriptions  in  such  case  made  for  the  purpose 
of  making  up  the  required  sum  are  a  fraud  upon  the  other  sub- 
scribers ;  and  should  not  be  treated  as  valid  subscriptions.,  Where 
by  deducting  such  confidential  subscriptions  the  required  sum  is 
not  subscribed,  the  contract  of  subscription  does  not  become  opera- 
tive, so  as  to  bind  the  subscribers.  Parol  evidence  is  admissible 
to  show  that  certain  of  the  subscriptions  were  confidential  in  char- 
acter and  therefore  fraudulent.6 

6.  Where  the  corporation  was  indebted  for  borrowed  money,  and 
issued  stock  to  a  'third  person  in  trust  for  the  security  of  the  debt, 
on  condition  to  be  retransferred  to  the  company  upon  payment 
of  the  debt,  it  was  held  the  shares  were  illegally  issued.7 

that  provided  in  the  charter  of  the  company,  the  party  may  lose  the  right  to  object 
to  paying  his  subscriptions  on  that  ground,  unless  he  resort  to  mandamus  or  in- 
junction, at  the"  earliest  convenient  time.  Booker  ex  parte,  18  Ark.  338;  Brown- 
lee  v.  Ohio,  Ind.  &  111.  Railw.,  18  Ind.  68. 

4  Henderson  v.  Railway  Company,  17  Texas,  560. 

3  Wolverhampton  N.  W.  Co.  v.  Hawksford,  7  C.  B.  (N.  S.)  795;  6  Jur. 
(N.  S.)  632.  Affirmed  in  Exch.  Chamber,  10  W.  Rep.  153;  11  C.  B.  (N.  S.) 
456;  8  Jur.  (N.  S.)  844. 

6  New  York  Exchange  Co.  v.  De  Wolf,  31  N.  Y.  273.     But  see  ante,  n.  1 . 

7  Brewster  v.  Hartley,  37  Cal.  15 ;  ante,  §  20,  pi.  11. 

[*161] 


171 


ASSESSMENTS    OR    CALLS. 


PART  II. 


SECTION     III. 


Mode  of  enforcing  Payment. 


I  S  scription  t»  indefinite  stock,  raises  no 
implied  promise  to  pay  the  amount  as- 
S(  BSl  d. 

2.  If  shares  are  definite,  subscription  implies 
a  promis<  to  pay  assessments.  Bight  of 
forfeitun  a  cumulative  remedy. 

Ii.  Whether  issuing  new  stock  will  bar  a  suit 
-  r,  quaere. 

4.  It  would  st  i  m  not. 

5.  I 'nit  the  requirements  of  the  charter  and 

</.  m  ral  laws  of  the  state,  must  be  strict- 


ly   pursued    in    declaring    forfeiture 
of  stock. 

6.  Notice  of  sale  must  name  place. 

7.  Validity  of  calls  not  affected  by  miscon- 

duct of  directors  in  other  matters. 

8.  Proceedings  must  be  regular  at  date. 

9.  Acquiescence  will  estop  the  party,  often. 

10.  Forfeiture  of  shares. 

11.  Irregular  calls  must  be  declared  void,  be- 

fore others  can  be  made  to  supply  the 
place. 


§49.  1.  The  company  may  resort  to  all  the  modes  of  enforcing 
payment  of  calls  which  are  given  them  by  their  charter,  or  the  gen- 
eral laws  of  the  state,  unless  these  remedies  are  given  in  the  alter- 
native. But  the  principal  conflict  in  the  cases  seems  to  arise  upon 
the  point  of  maintaining  a  distinct  action  at  law  for  the  amount 
assessed.  Many  of  the  early  turnpike  and  manufacturing  compa- 
nies, *  in  this  country,  did  not  create  any  definite,  or  distinct  capi- 
tal stock,  to  consist  of  shares  of  a  definite  amount,  in  currency,  but 
only  constituted  the  subscribers  a  body  corporate,  leaving  them  to 
raise  their  capital  stock,  in  any  mode  which  their  by-laws  should 
prescribe.  And  in  some  such  cases,  the  charter,  or  general  laws 
of  the  state,  gave  the  company  power  to  assess  the  subscribers 
according  to  the  number  of  shares  held  by  each.  But  the  amount 
of  the  shares  was  not  limited.  The  assessments  might  be  extended 
indefinitely,  according  to  the  necessities  of  the  company.  In  such 
cases,  where  the  only  remedy  given,  by  the  deed  of  subscription, 
the  charter  and  by-laws,  or  the  general  laws  of  the  state,  was  a 
forfeiture  of  the  shares,  the  courts  generally  held,  that  the  sub- 
seriber  was  not  liable  to  an  action  in  personam  for  the  amount 
of  calls.1     And  this  seems  to  us  altogether  reasonable  and  just. 

1  Franklin  Glass  Co.  v.  White,  14  Mass.  286;  Andover  Turnpike  Co.  v. 
Gould,  6  Mass.  40;  Same  v.  Hay,  7  id.  102;  New  Bedford  Turnpike  Co.  v. 
Adams,  8  id.  188;  Bangor  House  Proprietary  ».  Hinckley,  3  Fairfield,  385, 
388;  Franklin  Glass  (  o.  v.  Alexander,  2  New  Hamp.  380.  But  where  there 
was  an  express  promise  to  pay  assessments,  or  facts  from  whieh  such  an  under- 

[*162J 


§  49.  MODE   OF   ENFORCING   PAYMENT.  175 

*  For  if  a  subscription  to  an  indefinite  stock  created  a  personal 
obligation  to  pay  all  assessments  made  by  the  company  upon  such 
stock,  it  would  be  equivalent  to  a  personal  liability  of  the  stock- 
holders for  the  debts  and  liabilities  of  the  company  ;  as  we  shall 
see,  hereafter,  that  the  directors  of  a  corporation  may  be  compelled, 
by  writ  of  mandamus,  to  make  calls  upon  the  stock,  for  the  pur- 
pose of  paying  the  debts  of  the  company.2 

2.  But  where  the  stock  of  the  company  is  defined  in  its  char- 
ter, and  is  divided  into  shares  of  a  definite  amount  in  money,  a 
subscription  for  shares  is  justly  regarded  as  equivalent  to  a  prom- 
ise to  pay  calls,  as  they  shall  be  legally  made,  to  the  amount  of 

taking  was  inferable,  it  was  always  held,  even  in  this  class  of  cases,  that  an  action 
will  lie.  Taunton  &  South  Boston  Turnpike  Co.  v.  Whiting,  10  Mass.  327  ; 
Bangor  Bridge  Co.  v.  McMahon,  1  Fairfield,  478.  But  a  subscriber  to  the  stock 
of  a  turnpike  company,  who  promised  to  pay  assessments,  when  afterwards  the 
course  of  the  road  was  altered  by  law,  was  held  thereby  exonerated.  Middlesex 
Turnpike  Co.  v.  Swan,  10  Mass.  384.  The  citation  of  cases  to  these  points 
might  be  increased  indefinitely,  but  it  is  deemed  useless,  as  these  propositions 
have  never  been  questioned.  Worcester  Turnpike  v.  Willard,  5  Mass.  80. 
The  following  cases  will  be  found  to  confirm  the  cases  cited  above :  Chester 
Glass  Co.  v.  Dewey,  16  Mass.  94;  Newburyport  Bridge  Co.  v.  Story,  6  Pick. 
45  ;  Salem  Mill-Dam  Co.  v.  Ropes,  6  Pick.  23 ;  Ripley  v.  Sampson,  10  id.  371 ; 
Cutler  v.  Middlesex  Factory  Co.,  14  id.  483.  This  general  question  of  the 
responsibility,  assumed  by  those  who  consent  to  become  shareholders  in  a  cor- 
poration, where  the  shares  are  not  fully  paid  up,  is  considerably  discussed,  by 
Allen,  J.,  in  a  case  in  the  N.  Y.  Court  of  Appeals,  where  the  facts  being  pecu- 
liar, it  was  held  the  shareholder  incurred  no  obligation  to  pay  the  balance  due 
upon  the  shares  if  he  elected  to  abandon  them.  Seymour  v.  Sturgess,  26  N.  Y. 
134.  But  there  is  no  implication  of  duty  to  pay  the  amount  of  a  subscription 
to  the  stock  of  a  railway  company,  especially  where  the  terms  of  subscription 
declare  payment  to  be  made  in  such  instalments  as  shall  be  required  by  the 
board  of  directors,  unless  the  declaration  and  proof  show  that  an  instalment  had 
been  required  by  the  directors.  Gebhart  v.  Junction  Railw.  Co.,  12  Ind.  484; 
McClasky  v.  Grand  Rapids  &  Ind.  Railw.  Co.,  16  Ind.  96.  Where  by  the  charter 
of  an  eleemosynary  corporation  subscriptions  were  allowed  to  be  taken,  and  the 
subscriber,  by  securing  the  amount  and  paying  the  interest  promptly,  was  entitled 
to  save  the  payment  of  the  principal,  it  was  held  this  was  matter  of  indulgence 
to  the  subscriber,  to  which  he  could  only  entitle  himself  by  proving  his  compliance 
with  the  conditions  upon  which  the  indulgence  was  granted.  Denny  v.  North 
W.  Christian  University,  16  Ind.  220.  The  undertaking  of  subscribers  to  a 
joint-stock  will  be  held  several  and  not  joint,  without  express  words.  Price  v. 
Grand  Rapids  &  I.  R.  Co.,  18  Ind.  137.  The  law  by  which  a  corporation  exists 
and  acts  forms  part  of  the  contract  of  subscription.  Hoagland  v.  Cin.  &  F.  W. 
R.  Co.,  18  Ind.  452. 
2  Post,  §  50. 

[*163] 


L76  AS8E8SMENT8   OR   CALLS.  PART  II. 

the  >li;uvs.  This  ma)'  now  be  regarded  as  settled,  both  in  this 
country  and  in  England,  and  that  the  power  given  the  company 
to  forfeit  and  sell  Hie  shares,  in  cases  where  the  shareholders  fail 
to  pay  calls,  is  not  an  exclusive  but  a  cumulative  remedy,  unless 
barter  or  general  laws  of  the  state,  provide  that  no  other 
remedy  Bhall  be  resorted  to  by  the  company/ 


3 


Bartford  &  New  Haven  Railway  Co.  v.  Kennedy,  12  Conn.  499.  In  this 
case  it  was  held,  that,  from  the  relation  of  stockholder  and  company  thus  created, 
a  promise  was  implied  to  pay  instalments;  that  the  clause  authorizing  a  sale  of 
the  stock  was  merely  cumulative;  and  that,  whether  the  company  resorted  to  it 
or  not,  the  personal  remedy  against  the  stockholder  remained  the  same.  The 
same  points  are  confirmed  by  the  same  court,  in  Mann  v.  Cooke,  20  Conn.  178. 
And  in  Danbury  Railw.  Co.  v.  Wilson,  22  Conn.  435,  the  defendant  was  held 
liable  for  calls  upon  a  subscription  to  the  stock  of  a  company  whose  charter  had 
expired,  and  been  revived  by  the  active  agency  of  defendant.  See  also  Dayton 
o.  B  irst,  31  N.  V.  -i;i."i ;  Fiscataqua  Ferry  Co.  v.  Jones,  39  N.  H.  491. 

All  the  cases,  with  slight  exceptions,  hold,  that  where  the  subscription  is  of 
such  a  character  as  to  give  a  personal  remedy  against  the  subscriber,  in  the  ab- 
sence of  all  other  specific  redress,  the  mere  fact  that  the  company  have  the  power 
to  forfeit  the  shares  for  non-payment  of  calls,  will  not  defeat  the  right  to  enforce 
the  payment  of  calls  by  action.  Goshen  Turnpike  Co.  v.  Hurtin,  9  Johns.  217; 
Dutchess  Cotton  Manufacturing  Co.  v.  Davis,  14  Johns.  238;  Troy  T.  Co.  v. 
McChesney,  21  Wend.  29  ;  Northern  R.  v.  Miller,  10  Barb.  260;  Plank-Road 
Co.  v.  Payne,  17  Barb.  567.  In  this  last  case  it  was  held  to  be  matter  of  inten- 
tion and  construction,  whether  the  remedies  were  concurrent  and  cumulative,  or 
in  the  alternative.  And  in  Troy  &  Boston  R.  v.  Tibbitts,  18  Barb.  297,  it  is 
said  to  be  well  settled,  that  the  obligation  of  actual  payment  is  created,  by  a 
subscription  to  a  capital  stock,  unless  plainly  excluded  by  the  terms  of  the  sub- 
scription, and  that  the  forfeiture  is  a  cumulative  remedy.  Ogdensburg  &  C. 
Railw.  v.  Frost,  21  Barb.  541.  See  also  Herkimer  M.  &  H.  Co.  v.  Small,  21 
Wend.  273;  s.  c.  2  Hill,  127;  Sagory  v.  Dubois,  3  Sandf.  Ch.  466;  Mann  ». 
Currie,  2  Barb.  294;  .Mann  v.  Pentz,  2  Sandf.  Ch.  257;  Ward  v..  Griswoldville 
Manuf.  Co.,  16  Conn.  -V.);;;  Lexington  &  Wet  Cambridge  R.  i?.  Chandler,  13 
311  :  Klein  v.  Alton  &  Sangamon  R.,  13  Illinois,  514;  Ryder  v.  Same,  id. 
516  Cahawba  R.,  8  Ala.  586 ;  Beene  v.  Cahawba  &  M.  R.,  3  id.  660; 

V.  Crawford,  14  Wend.  20;  Palmer  v.  Lawrence,  3  Sandf.  Sup.  Ct.  161, 
where  /'"  .  ■).,  iys  the  law  must  now  be  considered  as  settled,  "  that  the  obli- 
gation of  actual  payment  is  created  in  all  cases,  by  a  subscription  to  a  capital 
stock,  unless  the  terms  of  subscription  are  such  as  plainly  to  exclude  it."  Flys- 
ville  r.  O'Kisco,  5  Miller,  152;  Greenville  &  Columbia  R.  v.  Smith,  6  Rich.  91  ; 
( lharlotte  &  S.  ' '.  R.  R.  Co.  v.  Blakely,  3  Strob.  245;  Banet  v.  Alton  &  Sanga- 
mon  I!.,  13  Illinois,  504,  514;  Hightower  v.  Thornton,  8  Georgia,  486  ;  Freeman 
r.  Winchester,  10  Sm.  &  M.  577;  Tar  River  Nav.  Co.  v.  Neal,  3  Hawks,  520; 
/.  r.  Redd,  4  B.  Mon.  178;  Selma  R.  v.  Tipton,  5  Ala.  7i->7  ;  Troy  &  R.  R. 
r.  Kerr,  17  Barb.  581,  Where  the  statute  gives  an  election  to  the  company 
either  to  forfeit  the  shares  for  non-payment  of  calls,  or  to  sue  and  collect  the 
[*1G3J 


§  49.  MODE   OF   ENFORCING   PAYMENT.  177 

*  3.  The  question  in  the  English  cases  seems  to  be  whether, 
after  the  forfeiture  of  the  shares,  and  a  confirmation  of  the  same 

amount  of  the  shareholder,  it  was  held  that  no  notice  of  such  election  was  neces- 
sary to  be  given  before  suit  brought.  New  Albany  &  Salem  R.  v.  Pickens,  5 
Ind.  247.  The  terms  of  the  charter  must  be  pursued  where  they  provide  specifi- 
cally for  the  redress  for  non-payment  of  calls  ;  as  if  the  shareholder  is  made 
liable  only  for  deficiency  after  forfeiture  and  sale  of  the  stock.  Grays  v.  Turnpike 
Co.,  4  Rand.  578;  Essex  Bridge  Co.  v.  Tuttle,  2  Vt.  393.  But  some  of  the 
American  cases  seem  to  hold,  that  a  corporation  has  no  power  to  enforce  the 
payment  of  calls,  against  a  subscriber  for  stock,  unless  upon  an  express  promise, 
or  some  express  statutory  power,  and  that  a  subscription  for  the  stock  is  not 
equivalent  to  an  express  promise  to  pay  calls  thereon  to  the  amount  of  the  shares . 
Kennebec  &  Portland  R.  v.  Kendall,  31  Maine,  470.  But  this  class  of  cases  is 
not  numerous,  and  is,  we  think,  unsound.  See  also  Allen  v.  Montgomery  R., 
11  Ala.  437.  It  has  been  held,  that  after  the  forfeiture  is  declared,  the  company 
cannot  longer  hold  the  subscriber  liable.  Small  v.  Herkimer  M.  &  H.  Co.,  2 
Comst.  330.  So  if  the  company  omit  to  exercise  their  power  of  forfeiture,  as 
the  successive  defaults  occur,  until  all  the  calls  are  made,  it  thereby  loses  its 
remedy  by  sale.  Stokes  v.  The  Lebanon  &  Sparta  Turnpike  Co.,  6  Humph. 
241.  See  also  Harlaem  Canal  Co.  v.  Seixas,  2  Hall,  504;  Delaware  Canal  Co. 
v.  Sansom,  1  Binney,  70. 

The  fact  that  the  commissioners  have  by  the  charter  an  option  to  reject  sub- 
scriptions for  stock,  does  not  make  them  less  binding,  unless  they  are  so  rejected. 
Connecticut  &  Passumpsic  R.  R.  v.  Bailey,  24  Vt.  465.  An  agreement  made  at 
the  time  of  subscription  inconsistent  with  its  terms,  and  resting  in  oral  evidence 
merely,  cannot  be  received  to  defeat  the  subscription.  lb.  In  a  case  in 
Kentucky  this  subject  is  very  elaborately  discussed  by  the  counsel,  and,  as  it 
seems  to  us,  very  wisely  and  very  justly  disposed  of  by  the  court.  McMillan 
v.  Maysville  &  Lexington  Railw.  Co.,  15  B.  Monroe,  218.  It  was  there  held, 
that  subscriptions  to  the  stock  of  a  railway  company,  like  other  contracts,  should 
receive  such  construction  as  will  carry  into  effect  the  probable  intention  of  the 
parties.  That  the  stock  subscribed  was  to  be  the  means  by  which  the  road  should 
be  constructed,  and  hence,  that  a  subscription  for  stock,  on  condition  that  the 
road  should  be  so  "located  and  constructed  as  to  make  the  town  of  Carlisle  a 
point,"  imposed  upon  the  subscribers  the  duty  to  pay,  upon  the  location  of  the 
road  in  that  place,  and  that  the  construction  of  the  road  was  not  a  condition  pre- 
cedent to  the  right  to  recover  for  calls  on  the  stock.  See  also  New  Hampshire 
Central  R.  v.  Johnson,  10  Foster,  390  ;  South  Bay  Meadow  Dam  Co.  v.  Gray, 
30  Maine,  547  ;  Greenville  &  Columbia  R.  v.  Cathcai  t,  4  Rich.  89  ;  Danbury  & 
Norwalk  R.  v.  Wilson,  22  Conn.  435.  An  agreement  to  take  and  fill  shares  in 
a  railway  company,  is  an  agreement  to  pay  the  assessments  legally  made.  Ban- 
gor Bridge  Co.  v.  McMahon,  10  Maine,  478;  Buckfield  Br.  R.  v.  Irish,  39  id. 
44;  P.  &  K.  R.  v.  Dunn,  id.  587;  Penobscot  R.  v.  Dummer,  40  Maine,  172; 
White  Mountains  Railw.  v.  Eastman,  34  N.  H.  124.  So,  too,  an  agreement  to 
take  shares  before  the  act  of  incorporation  is  obtained,  creates  an  implied  duty 
to  pay  calls  duly  made  thereon.  Buffalo  &  N.  Y.  City  Railw.  v.  Dudley, 
14  N.  Y.  336.  The  general  subject  is  discussed  somewhat  at  large  in  this  case, 
vol.  i.  12  [*164J 


17s  ASSESSMENTS    OR    CALLS.  PART  II. 

*  by  the  company,  and  the  issuing  of  new  stock  in  lieu  of  the  for- 
feited  Bhares,  the  subscriber  is  still  liable  for  any  deficiency.  The 
cases  all  regard  him  as  liable,  under  the  English  statutes,  to  a 
personal  action,  until  the  confirmation  of  the  forfeiture  of  his  stock.4 

1.  But  in  the  House  of  Lords,6  it  seems  to  have  *been  settled, 
upon  gre  it  consideration,  that  where  the  charter  or  general  statutes 
give  ilh'  right  to  forfeit  the  shares,  or  to  collect  the  amount  of  the 
shareholder,  and  the  forfeiture,  sale,  and  cancellation  of  the  shares, 
do  nut  produce  the  requisite  amount,  the  company  may  issue  new 
Bhares  for  the  deficiency,  and  at  the  same  time  maintain  an  action 
for  it.  aga  dsI  the  former  owner. 

5.  It  seems  to  be  well  settled,  that  to  entitle  the  company  to  sue 
for  calls,  the  provisions  of  their  charter,  and  of  the  general  laws 
of  the  state,  must  be  strictly  pursued.  And  if  the  shares  have 
been  forfeited  and  sold  without  pursuing  all  the  requirements,  pro- 
vided in  such  case,  no  action  will  lie  to  recover  the  balance  of  the 

and  the  results  arrived  at  confirm  tlie  doctrines  laid  down  in  the  text.  Rensse- 
laer &  W.  PI.  Rd.  Co.  v.  Barton,  1G  X.  Y.  \bl .  The  same  rule  is  mentioned  in 
Fry's  Ex'rs  '•.  Lex.  &  Big  S.  Railw.,  2  Met.  (Ky.)  314,  where  the  question  of 
the  extent  "f  implied  obligation  assumed  by  subscription  to  the  capital  stock 
of  a  corporation  is  very  fully  and   fairly  illustrated. 

4  Greal  Northern  R.  r.  Kennedy,  I  Exch.  417.  So  the  allottees  of  shares  in 
a  projected  railway  company  are  made  liable  lor  a  proportionate  share  of  the 
expense.  Uptiirs  case,  1  Sim.  (X.  S.)  395;  s.  c.  1  Eng.  L.  &  Eq.  13;  The  Di- 
rect  S  ■  .'.-bury  &  Leicester  Railw.  Co.,  in  re,  1  Sim.  (N.  S.)  281 ;  s.  c.  7  id.  28  ; 
London  &  lb  R.  v.  Fairclough,  2  M.  &  G.  674;  Edinburgh  L.  &  N.  H.  R.  v. 
Bebblewhite,  6  M.  &  W.  709;  s.  c.  2  Railw.  C.  237;  Birmingham,  Bristol  & 
Tii.  .1.  K.  v.  Locke,  1  Q.  B.  256;  s.  c.  2  Railw.  C.  867;  RailwayCo.  v.  Graham, 
1  Ad.  cV  Ellis  (X.  S.),  271  ;  Iluddersfield  Canal  Co.  v.  Buckley",  7  T.  R.  36.  It 
lias  been  held,  that  a  shareholder  cannot  absolve  himself  from  calls  by  paying 
the  directors  a  sum  of  money  for  his  discharge,  even  though  the  money  be 
accepted,  and  tie  shares  transferred.  Bennett  ex  parte,  18  Beav.  339;  s.  c.  5 
.  M.  &G.  284.     See  also  §  4,  ante. 

I  ;lis»  Great  Northern  R.,  IMcQu.  H.L.  1112;  8.  c.  16  Eng.  L.&Eq.  55. 
Seealso  Peoria  &  OquawkaR.  v.  Elting,  17  111.  120;  Cross  v.  .Mill  Co.,  17111.54. 
But  v. he;.-  t'i"  deed  of  settlement  gave  the  right  to  forfeit  the  shares  at  once, 
or  to  enforce  the  payment,  if  they  should  think  fit,  it  was  held,  that  a  judgment 
for  the  amount  due  is  a  bar  to  any  subsequent  forfeiture.  Giles  ».  Hutt,  3  Exch. 
18.  And  where  the  charter  of  the  company  provided,  that  the  shares  of  a 
delinquent  shareholder  "  shall  be  liable  to  forfeiture,  and  the  company  may 
ne  forfeited  and  vested  in  the  company,"  it  was  held  the  option,  in 
declaring  I     feiture,    was   in  the   company,   and  not   in    the  shareholders. 

Railway  Company  v.  Rodrigues,  10  Rich.  (S.  C.)  278. 

[*165,  166] 


§  49.  MODE    OP   ENFORCING   PAYMENT.  179 

subscription.6  And  if  the  shares  be  sold  for  the  non-payment  of 
several  assessments,  one  of  which  is  illegal,  the  corporation  cannot 
recover  the  remainder  of  the  subscription.7  But  where  the  by- 
laws of  the  company  prescribe  a  specific  mode  of  notice  to  the 
delinquent,  through  the  mail,  of  the  time  and  place  of  sale,  this  is 
not  to  be  regarded  as  exclusive,  but  other  notice  which  reaches  the 
party  in  time  will  be  sufficient.8 

But  in  another  case9  the  law  in  regard  to  proceedings  in  forfeit- 
ure *  of  shares  is  held  very  strictly.  It  is  here  considered  that 
notice  must  be  given  in  the  precise  time  and  in  the  exact  form  re- 
quired by  statute,  and  that  the  sale  must  in  all  respects  correspond 
precisely  with  the  requirements  of  the  provisions  of  the  law.  The 
rule  is  carried  so  far  here  that  posting  notice  in  a  public  place  was 
held  no  sufficient  compliance  with  the  law  requiring  it  to  be  in  a 
"conspicuous"  place;  and  it  was  here  considered  that  subscrip- 
tions to  preferred  stock  could  not  be  reckoned  to  make  up  the 
requisite  amount  of  capital  to  enable  the  corporation  to  go  into 
operation. 

6.  But  notice  that  shares  in  a  railway  corporation  will  be  sold 
for  non-payment  of  assessments  on  a  day  fixed,  and  by  an  auc- 
tioneer named,  who  is  and  has  long  been  an  auctioneer  in  the 
place  at  which  the  notice  bears  date,  is  insufficient  if  it  do  not 
name"  the  place  of  sale.10 

7.  The  validity  of  calls  cannot  be  called  in  question  upon  the 

6  Portland,  Saco,  &  Portsmouth  Railw.  v.  Graham,  11  Met.  1. 

7  Stoneham  Branch  R.  Co.  v.  Gould,  2  Gray,  277. 

8  Lexington  &  West  Cambridge  Railw.  v.  Chandler,  13  Met.  311.  And  where 
the  charter  required  notice  of  the  instalment  three  weeks  prior  to  the  same 
becoming  due,  it  was  held  prima  facie  evidence  of  compliance  by  producing  the 
publication,  and  oral  evidence  of  its  being  repeated  the  requisite  number  of 
times,  without  producing  all  the  papers.  Unthank  v.  Henry  County  Tump. 
Co.,  6  Porter  (Ind.),  125.  And  in  a  later  case,  Anderson  v.  The  Ohio  &  Miss. 
Railway  Co.,  14  Ind.  169,  where  the  charter  limited  the  amount  of  calls  to  ten 
per  cent  per  annum  upon  subscriptions  to  stock,  and  ten  per  cent  had  been 
paid,  a  call  was  held  sufficient  without  specifying  the  place  of  payment  or  the 
percentage  to  be  paid,  only  five  remaining  within  the  power  of  the  directors  to 
call  for,  and  the  notice  fixing  the  time  and  place  of  payment. 

9  Lewey's  Island  Railw.  v.  Bolton,  4S  Me.  451.  The  rules  of  law  as  to 
what  is  requisite  to  constitute  a  valid  subscription  to  a  stock  in  a  railway  com- 
pany and  to  justify  calls,  are  much  considered  in  the  recent  case  of  Maltby  v. 
N.  W.  Va.  Railw.,  16  Md.  422. 

10  Lexington  &  West  Cambridge  Railway  v.  Staples,  5  Gray,  520. 

[*167J 


180  ASSESSMENTS   OR   CALLS.  PART  II. 

ground  that  the  directors  making  the  same  are  acting  in  the  inter- 
est and  for  the  benefit  of  a  rival  company,  and  have  in  consequence 
unnecessarily  retarded  the  construction  of  the  company's  works.11 
But  the  directors  must  be  duly  appointed.12 

B.  And  the  proceedings  in  making  the  calls  must  have  been 
substantially  in  conformity  with  the  charter  and  by-laws  of  the 
company  and  the  general  laws  of  the  state  at  the  time  of  making 
the  same.  Any  subsequent  ratification  by  the  directors  of  an  in- 
formal call  will  only  give  it  effect  from  the  date  of  the  ratifica- 
tion.12 

9.  A  subscriber  who  has  executed  the  deed  of  settlement,  pur- 
chased shares  and  received  dividends  upon  the  same,  is  not  at 
liberty  to  object  to  their  validity  upon  the  ground  that  the  company 
were  by  the  deed  of  settlement  authorized  to  issue  shares  for  XI 00, 
and  these  were  issued  as  half  shares  at  £50  ;  this  acquiescence 
estops  him  from  doing  so.14 

10.  It  seems  that  unless  the  constitution  of  the  corporation  or 
the  general  laws  of  the  state  contain  a  provision  justifying  a  for- 
feiture *  of  shares,  it  is  not  competent  for  the  majority  of  the  share- 
holders by  prospective  resolution  to  establish  a  regulation  whereby 
the  shares  shall  be  forfeited  upon  failure  to  comply  with  the  re- 
quirements of  such  resolution.15 

11.  It  is  no  valid  reason  for  making  more  calls  than  are  justified 
by  the  constitution  and  laws  affecting  the  question,  that  some  of 
the  calls  were  not  regularly  made  and  were  therefore  void,  and 
were  not  paid  by  the  defendant.  It  should  appear  that  such  irreg- 
ular calls  had  been  declared  void,  otherwise  the  directors  may  have 
secured  most  of  the  money  demanded  by  them.16 

11  Orr  v.  Gl.  A.  &  M.  J.  Railw.,  3  McQu.  Ho.  Lds.  799 ;  s.  c.  6  Jur.  (N.  S.) 
877. 

»  II.  B.  Coal  Co.  v.  Teague,  5  H.  &  N.  151  ;  s.  c.  6  Jur.  (N.  S.)  275. 

13  Cornwall  G.  C.  M.  Co.  v.  Bennett,  5  H.  &  N.  423;  s.  c.  6  Jur.  (N.  S.) 
jlo  California  G.  M.  Co.  v.  Lewis,  6  H.  &  N.  174;  s.  c.  6  Jur.  (N.  S.) 
1376. 

11  Hull  Flax  &  Cotton  Co.  v.  Wellesley,  6H.&N.  38. 

15  Barton's  case,  4  De  G.  &  J.  46. 

16  Welland  Railw.  v.  Berrie,  6H.&N.  416. 

[*168] 


§50. 


CREDITORS   MAY   COMPEL   PAYMENT   OF    SUBSCRIPTIONS. 


181 


SECTION    IV. 


Creditors  may  compel  Payment  of  Subscriptions. 


1.  Company  compelled  to  collect  of  subscribers 
by  mandamus. 

2-4.  Amount  due  from  subscribers,  a  trust- 
fund  for  the  benefit  of  creditors. 

5.  If  a  state  oivn  the  stock  it  will  be  the  same. 

6,  7.  A  diversion  of  the  funds  from  creditors 

is  a  violation  of  contract  on  the  part  of 
the  company,  and  a  state  law  authorizing 
it  invalid. 


8,  9.   The  general  doctrine  above  stated  found 
in  many  American  cases. 

10.  Judgment    creditors    may   bring   bill   in 

equity. 

11.  Promoters  of  railways  liable  as  partners, 

for  expenses  of  procuring  charter. 

12.  Railway  company  may  assign  calls  before 

due,  in  security  for  bona  fide  debt.  No 
notice  required  to  perfect  assignment 
against  attachments  or  judgment  liens. 


§  50.  1.  By  the  present  English  statute,  the  creditors  of  a  com- 
pany may  recover  their  judgment  debts,  against  shareholders,  who 
have  not  paid  the  full  amount  of  their  shares  to  the  extent  of  the 
deficiency.1  Before  this  statute,  it  was  considered  that  a  writ  of 
mandamus  would  lie,  to  compel  the  company  to  make  and  enforce 
calls  against  delinquents.2 

2.  In  this  country  this  question  has  arisen,  not  unfrequently,  in 
*  the  case  of  insolvent  companies,  no  such  provision  existing  in 
most  of  the  states  as  that  of  the  English  statute  just  referred  to. 

3.  This  subject  is  very  extensively  examined,  and  considered  by 
the  national  tribunal  of  last  resort,  in  a  case  of  much  importance 
and  delicacy,3  and  the  following  results  arrived  at:  — 

4.  On  the  dissolution  of  a  corporation,  its  effects  are  a  trust- 
fund,  for  the  payment  of  its  creditors  who  may  follow  them,  into 
the  hands  of  any  one,  not  a  bona  fide  creditor,  or  purchaser  without 
notice ;  and  a  state  law,  which  deprives  creditors  of  this  right,  and 
appropriates  the  property  to  other  uses,  impairs  the  obligation  of 
their  contracts  and  is  invalid. 

1  8  &  9  Vict,  c.  16,  §§  36,  37. 

2  Walford,  277;  Hodges,  106,  n.  («)  ;  Reg.  v.  Victoria  Park  Co.,  1  Q.  B. 
288,  where  the  opinion  of  the  court  very  clearly  intimates,  that  the  writ  of  man- 
damus will  lie,  to  compel  the  company  to  enforce  the  payment  of  calls,  where  it 
appears  that  judgments  against  the  company  remain  unsatisfied  for  want  of 
assets.  But,  under  the  circumstances  of  this  case,  it  was  not  deemed  requisite 
to  issue  the  writ. 

3  Curran  v.  State  of  Arkansas,  15  How.  (U.  S.)  304. 

[*109] 


182  ASSESSMENTS   OR   CALLS.  PART  II. 

5.  The  fact  that  a  state  is  the  sole  owner  of  the  stock  in  a 
banking  corporation,  does  not  affect  the  rights  of  the  creditors. 

6.  The  capital  stock  of  a  company  is  a  fund  set  apart  by  its 
charter  for  the  payment  of  its  debts,  which  amounts  to  a  contract, 
with  those  who  shall  become  its  creditors,  that  the  fund  shall 
not  be  withdrawn  and  appropriated  to  the  use  of  the  owner,  or 
owners,  of  the  capital  stock. 

7.  A  law  which  deprives  creditors  of  a  corporation  of  all  legal 
remedy  against  its  property,  impairs  the  obligation  of  its  contracts, 
and  is  invalid. 

8.  These  propositions,  with  the  exception  of  the  constitutional 
question,  in  regard  to  the  impairing  of  an  assumed  or  implied 
contract  with  the  creditors  of  the  corporation,  are  all  fully  sus- 
tained by  numerous  decisions  of  the  highest  authority  in  this 
country. 

9.  Thus  in  a  case  before  Mr.  Justice  Story,  in  the  Circuit 
Court,4  it  was  held  that  the  capital  stock  of  a  corporation  is  a 
trust-fund,  for  the  payment  of  its  debts,  and  being  so,  it  may,  upon 
general  principles  of  equity  law,  be  followed  into  other  hands,  so 
long  as  it  can  be  traced,  unless  the  holder  show  a  paramount 
title.5  And  in  cases  where  the  capital  stock  or  assets  of  a  corpo- 
ration have  been  distributed  to  the  stockholders  without  providing 
for  the  payment  of  its  debts,  a  court  of  equity  will  allow  the  cred- 
itors to  sustain  a  bill  against  the  shareholders,  to  compel  contri- 
bution to  the  payment  of  the  debts  of  the  company,  to  the  extent 
of  funds  obtained  by  them,  whether  directly  from  the  company,  or 
*  through  some  substitution  of  useless  securities  for  those  .which 
were  good.6 

4  Wood  V.  Dummer,  3  Mason,  308. 

"  A.lair  v.  Shaw,  1  Sch.  &  L.  243,  261.     See  Dayton  v.  Borst,  31  N.  Y.  435. 

8  Nathan  v.  Whitlock,  9  Paige,  152;  s.  c.  3  Edward's  Ch.  215.  But  it  has 
been  held,  that  the  distribution  of  the  capital  stock  among  the  shareholders, 
before  the  debts  of  the  company  are  paid,  and  leaving  no  funds  for  that  purpose, 
will  not  render  the  shareholders  liable  to  an  action  of  tort,  at  the  suit  of  the 
creditors  of  the  company,  there  being  no  such  privity  as  will  lay  the  foundation 
of  an  action  at  law,  even  in  states  where  no  court  of  chancery  existed.  Vose  v. 
Grant.  15  Mass.  505.  In  equity  the  suit  may  be  in  the  name  of  the  receiver, 
Nathan  v.  Whitlock,  9  Paige,  152,  or  in  the  name  of  a  creditor,  suing  on  behalf 
of  himself  and  others,  standing  in  the  same  relation.  Mann  v  Pentz,  3  Comst. 
415,  422.  And  all  the  shareholders,  who  have  not  paid  their  subscriptions,  should 
be  made  parties  to  the  bill,  and  compelled  to  contribute  proportionally.     lb. 

The  same  principle  is  recognized  in  numerous   other  cases.     Mumma  v.  The 

[*170] 


§  50.  CREDITORS    MAY    COMPEL    PAYMENT    OF    SUBSCRIPTIONS.         183 

10.  Where  a  corporation  have  abandoned  all  proceedings  under 
their  charter,  from  insolvency,  and  still  owe  debts,  the  subscrip- 
tions to  the  capital  stock  not  being  all  paid,  a  judgment  creditor 
may  proceed,  in  equity,  against  the  delinquent  share-owners,  there 
being  no  longer  any  mode  by  which  calls  upon  the  stock  may  be 
enforced,  under  the  provisions  of  the  charter,  or  by  action  at  law, 
in  favor  of  the  company.7 

11.  It  is  held  under  the  English  statutes,  in  regard  to  fully 
registered  companies,  which  never  go  into  full  operation,  but  have 
to  be  closed  under  the  winding-up  acts,  that  a  shareholder,  who 
has  paid  up  the  full  amount  of  his  shares,  is  still  liable  to  pay  the 
necessary  calls,  to  defray  the  expenses  of  winding  up  the  company, 
*  the  subscribers  to  such  joint-stock  companies,  under  the  statute, 
being  held  liable  to  the  same  extent  as  partners.8 

12.  The  company  may  assign,  as  security  for  a  debt  due  from 
them,  an  existing  unpaid  call  upon  shares  not  yet  due,  and  if  the 
assignment  contains  a  power  of  sale,  that  will  not  invalidate  the 
assignment,  since  if  held  void,  a  court  of  equity  will  expunge  it, 
or  restrain  its  exercise,  and  it  cannot  have  any  effect  to  avoid  the 
assignment  until  acted  upon  ;  and  a  shareholder  from  whom  such 
call  is  due  will  be  affected  with  notice  of  the  assignment,  if  pre- 

Potomac  Co.,  8  Pet.  (U.  S.)  281 ;  Wright  e.  Petrie,  1  Sm.  &  M.  Ch.  282,  319 ; 
Nevitt  v.  Bank  of  Port  Gibson,  6  Sm.  &  M.  513;  Hightower  v.  Thornton,  8 
Georgia,  486  ;  Fort  Edward,  &e.  Plank  Road  Co.  v.  Payne,  17  Barb.  567  ;  Gillet 
v.  Moody,  3  Comst.  479.  This  case  is  where  the  bank,  of  which  the  plaintiff  was 
receiver,  had  transferred  specie  funds  to  defendant,  in  exchange  for  his  own 
stock  in  the  bank.  The  transaction  was  held  illegal,  and  the  defendant  was 
compelled  to  refund,  for  the  benefit  of  the  creditors  of  the  bank.  And  where 
the  subscriber  to  a  bank,  which  became  insolvent,  assigned  all  his  interest  in  the 
bank,  it  was  held  not  to  exonerate  him  from  liability  to  assessments  upon  his 
subscription,  to  pay  debts  due  from  the  bank,  although  contracted  subsequent  to 
the  assignment.  Dayton  v.  Borst,  7  Bosw.  115.  See  also  Morgan  v.  New  York 
&  Albany  R.,  10  Paige,  290. 

7  Henry  v.  The  Vermillion  &  Ashland  Railw.,  17  Ohio,  187.  See  also  Miers 
v.  Z.  &  M.  T.  Co.,  11  Ohio,  273;  s.  c.  13  Ohio,  197.  And  where  the  com- 
pany retains  its  organization  and  officers,  it  may  be  compelled,  by  writ  of  man- 
damus, to  enforce  calls  against  the  shareholders,  to  the  extent  of  their  liability, 
as  well  as  to  perform  other  duties.  Commonwealth  v.  Mayor  of  Lancaster,  5 
Watts,  152. 

8  Matter  of  the  Sea,  Fire,  and  Life  Assurance  Society,  3  De  G.,  M.  &  G.  459  ; 
8.  c.  23  Eng.  L.  &  Eq.  422.  The  form  of  proceeding  and  the  extent  of 
responsibility  is    extensively  considered,  as    to    delinquent   subscribers   to    an 

nsolvent  corporation,  in  Adler  v.  Milw.  Patent  Brick  Co.,  13  Wis.  57. 

[*171] 


184 


ASSESSMENTS    OR    CALLS. 


PART  II. 


Biding  at  the  meeting  when  it  was  made,  although  having  no 
further  knowledge  in  regard  to  it.9  But  it  was  doubted  if  any 
notiee  were  required  to  perfect  an  assignment  in  security  of  a 
bona  fide  debt,  against  a  subsequent  judgment  or  attachment  lien. 
And  in  a  later  case,10  it  was  decided  that  no  notice  is  required  in 
such  case,  and  that  Watts  v.  Porter,11  where  the  majority  of 
Queen's  Bench  held  such  notice  indispensable,  was  no  longer  law. 


SECTION    V. 


Conditions  precedent  to  making   Calls. 


1.  Conditions  precedent  must  be  performed 

before  calls. 

2.  But  collateral,  or  subsequent  conditions  not. 

3.  Definite  capital  must  all  be  subscribed  be- 

fore calls. 

4.  It  is  the  same  where  defined  by  the  com- 

pany, as  in  the  charter. 
6.   Conditional  subscriptions  not  to  be  reck- 
oned. 


6.  Legislature  cannot  repeal  conditions  prece- 

dent. 

7.  Limit  of  assessments  cannot  be  exceeded  for 

any  purpose. 

8.  Where  charter  fails  to  limit  stock,  corpo- 

ration may. 

9.  Alteration  in  charter  reducing  amount  of 

stock. 


§  51.  1.  Conditions  precedent  must  be  complied  with,  before  any 
binding  calls  can  be  made.  Any  thing,  which,  by  the  express  pro- 
visions of  the  charter,  or  the  general  laws  of  the  state,  is  made  a 
condition  to  be  performed  on  the  part  of  the  company,  or  its 
*  agents,  before  and  as  the  foundation  of  the  right  to  makecalls, 
upon  the  subscriptions  to  the  stock ;  or  where  the  thing  is  re- 
quired to  be  done,  before  calls  shall  be  made,  and  is  an  important 
element  in  the  consideration  of  the  agreement  to  take  stock  in  the 
company,  it  should  ordinarily  be  regarded  as  a  condition  prece- 
dent. 

2.  But  where  the  matter  to  be  done  is  rather  incidental  to  the 
main  design,  and  only  affects  the  enterprise  collaterally,  it  will 
commonly  be  regarded  as  merely  directory  to  the  company,  or  at 
most  as  a  concurrent  or  subsequent  condition,  to  be  enforced  by 

9  Pickering  v.  Ilfracombe  Railw.  Law  Rep.,  3  C.  P.  235. 

10  Robinson  i\  Xisbitt,  id.  264. 

11  3  El.  &  B.  743. 
[*172] 


§  51.  CONDITIONS   PRECEDENT   TO   MAKING   CALLS.  185 

independent  proceedings,  and  in  the  performance  of  which  time  is 
not  indispensable.1 

1  Carlisle  v.  Cahawba  &  Marion  Railway  Co.,  4  Ala.  70;  ante,  §  18;  Banet 
v.  Alton  &  Sangamon  Railway  Co.,  13  111.  504;  Utica  &  Schenectady  Railway 
Co.  v.  Brinkerhoff,  21  Wend.  139.  This  last  case  is  an  action  upon  a  special 
undertaking  to  pay  land  damages,  on  condition  the  company  would  locate  their 
road  so  as  to  terminate  at  a  particular  place,  which  the  company  alleged  they 
had  done,  and  defendant  was  held  not  liable,  for  want  of  mutuality,  the  com- 
pany not  being  bound  by  the  contract.  Cooke  v.  Oxley,  3  T.  R.  653.  But  it 
admits  of  some  question,  we  think,  whether  the  case  of  21  Wend.  131),  comes 
fairly  within  the  principle  upon  which  it  was  decided.  The  case  of  Cooke  v. 
Oxley,  which  has  been  sometimes  questioned,  is  an  obvious  case  of  want  of  con- 
sideration on  the  part  of  defendant,  it  being  a  mere  naked  refusal  of  goods,  for 
a  fixed  time,  the  plaintiff  in  the  mean  time  having  an  election,  to  take  tliera 
or  not.  This  class  of  cases  is  numerous  and  sound,  resting  upon  the  mere  want 
of  consideration.  Burnet  v.  M.  Bisco,  4  Johns.  235.  But  where  such  an  option 
is  given  upon  consideration,  or  as  a  standing  offer,  and  in  the  mean  time  the 
other  party  proceeds  to  perform  the  contract  on  his  part,  it  is  as  binding  in  this 
form  as  in  any  other.  And  it  was  so  held,  in  the  case  of  the  Cumberland  Valley 
Railway  Co.  v.  Baab,  9  Watts,  458.  In  this  case  the  inhabitants  of  one  portion 
of  Harrisburg  made  a  subscription  to  induce  the  company  to  cross  the  river  at  a 
particular  point,  and  to  build  their  depot  upon  a  particular  street,  which  being 
done,  the  subscribers  were  held  liable  to  pay  their  subscriptions  to  the  company, 
and,  as  we  think,  upon  the  most  obvious  and  satisfactory  grounds. 

In  Henderson  &  Nashville  Railway  Co.  v.  Leavell,  16  B.  Monr.  358,  it  was 
held,  that  a  subscription  to  the  stock  of  a  railway,  conditioned  that  the  road 
should  pass  through  a  certain  town,  and  the  money  subscribed  should  be  ex- 
pended in  a  certain  county,  was  a  valid  subscription.  The  Court,  Stimpson,  J., 
say :  "  The  stock  in  this  case  is  not  conditional,  although  the  defendant  has,  in 
the  act  of  subscribing  for  it,  brought  the  company  under  certain  obligations  to 
him,  in  relation  to  if,  with  which  they  are  bound  to  comply.  Such  stipulations 
are  not  incompatible  with  sound  policy,  or  with  any  of  the  provisions  of  the 
charter.  They  do  not  render  the  subscription  void,  but  operate,  as  it  was 
intended  they  should,  for  the  benefit  of  the  stockholder.  But  even  if  the  sub- 
scription had  been  made,  upon  the  express  condition  that  the  money  should  not 
be  paid  until  certain  acts  were  done  by  the  company,  when  these  acts  were  done, 
the  stock  would  then  be  unconditional,  and  the  subscribers  would  then  be 
compelled  to  pay  it,  as  was  held  in  McMillan  ».  Maysville  &  Lexington  Railway 
Co.,  15  B.  Monr.  218."  If  a  subscription  for  stock  be  conditioned,  that  the 
subscriber  may  withdraw  his  subscription,  at  his  election,  if  the  whole  stock  is 
not  taken,  at  a  given  time,  and  the  defendant  pay  part  of  his  subscription  after 
that  date,  he  is  liable  for  the  balance,  unless  he  show  the  failure  of  the  condi- 
tion, and  his  own  election,  in  a  reasonable  time  after,  to  withdraw.  Wilming- 
ton &  Raleigh  Railway  Co.  v.  Robeson,  5  Iredell,  391.  On  a  subscription  to 
stock  in  a  railway  upon  condition  the  road  should  "pass"  on  a  certain  route 
through  a  certain  county,  it  is  not  a  condition  precedent  to  the  right  to  demand 
payment,  that  the  road  should  be  actually  constructed  upon  that  line ;  it  is  suffi- 

[»172] 


L86  ASSESSMENTS    OR    CALLS.  PART  II. 

•And  where  tlie  company  voted  to  issue  six  hundred  additional 
Bhares  and  to  allow  each  stockholder  to  take  one  new  share  for 

cient  if  the  road  be  permanently  located  there.  North  Missouri  R.  Co.  v. 
Winkler,  29  Mo.  818;  A.  &  N.  L.  Railw.  Co.  v.  Smith,  15  Ohio  (N.  S.),  328. 
Iso  Vicksburg,  Shreveport,  and  Texas  Railw.  v.  McKean,  12  La.  Ann.  038. 
There  is  a  case  in  Vermont,  Conn.  &  Pass.  Railw.  Co.  v.  Baxter,  32  Vt.  805, 
where  the  court  seem  to  hold,  that,  where  the  subscription  defined  the  route 
of  the  proposed  railway,  the  representations  of  the  agent  who  carried  about  the 
paper,  that  the  written  words  really  defined  one  particular  route,  and  not  another, 
the  subscribers  themselves  being  equally  conusant  of  the  facts  with  the  agent, 
was  binding  upon  the  company,  and  would  preclude  them  from  recovering  calls 
upon  such  subscription,  provided  the  road  were  not  in  fact  located  upon  the 
particular  route  indicated  by  the  agent,  although  in  fact  so  located  as  to  comply 
with  the  conditions  of  the  written  subscription,  and  although  the  agent  in  express- 
ing the  opinion  he  did,  acted  in  perfect  good  faith.  The  case  is  not  one  of  suffi- 
cient importance  to  require  much  discussion,  but  it  may  be  well  to  bear  in  mind, 
what  seems  to  have  escaped  the  apprehension  of  the  court  for  the  moment,  that 
the  point  ruled  as  stated  in  the  marginal  note  and  in  the  opinion  of  the  court, 
seems  to  lie  adopting  the  oral  representations  of  the  agent,  made  at  the  time  of 
the  subscription,  as  part  of  the  written  contract  of  subscription.  The  charge 
of  the  court  below  puts  the  case  upon  the  ground,  that  the  subscriber  is  bound  by 
the  legal  construction  of  his  written  subscription,  and  that  he  cannot  escape  such 
responsibility  by  showing  that  those  who  acted  on  behalf  of  the  company  main- 
tained a  different  opinion,  unless  that  was  done  fraudulently,  with  a  view  to 
di  ceive  the  defendant.  We  understood  that  to  be  the  law  at  the  time,  and  we 
cannot  fairly  say  that  we  understand  it  differently  now. 

In  ( lhamberlain  v.  Painesville  &  Hudson  R.  Co.,  15  Ohio  (N.  S.),  225,  it  was 
decided  that  where  a  subscription  was  made  for  a  given  number  of  shares  of 
stock  in  a  railway  company,  payable  at  such  times,  and  in  such  instalments,  as 
the  directors  may  prescribe,  provided  the  road  is  "  permanently  located"  on  a 
given  route,  and  that  a  "  freight  house  and  depot  be  built"  at  a  point  named  :  — 
1.  Thar  on  the  permanent  location  of  the  road  in  accordance  with  the  terms 
proposi  d,  the  subscription  became  absolute.  2.  That  the  provision  in  relation 
to  the  erection  of  the  buildings  must  be  regarded  as  a  stipulation  merely,  and 
its  performance  could  not  be  reasonably  considered  a  condition  precedent  to  the 
righl  to  collect  the  amount  of  the  subscription.  3.  The  giving  by  a  subscriber, 
of  his  note  for  the  balance  of  his  subscription,  and  taking,  therefor,  from  the 
company,  a  receipt,  stipulating,  that  when  paid,  the  amount  of  the  note  should 
be  applied  on  bis  stock,  was  prima  facie  a  waiver  of  conditions  precedent.  But 
this  i-  denie  1  in  a  later  case,  Parker  v.  Thomas,  19  Ind.  213. 

And  in  McAllister  v.  The  Ind.  &  Cin.  Railw.  Co.,  15  Ind.  11,  a  question 
similar  to  the  one  stated  in  Conn.  &  l'a-s.  Railw.  Co.  v.  Baxter,  supra,  arose 
and  received  a  fir  more  just  and  reasonable  determination.  The  plaintiff  made 
an  unconditional  subscription  to  the  stock  of  the  plaintiff's  company,  and  paid 
the  amount  and  took  and  retained  his  certificate  without,  offering  to  surrender 
the  smie.  But  at  the  time  of  the  subscription  the  company  promised  that  a 
branch  of  their  line  should  come  to  M-ilford,  the  place  of  the  plaintiff's  residence, 

[*178j 


§51.  CONDITIONS   PRECEDENT   TO    MAKING   CALLS.  187 

*  every  two  held  by  him,  if  he  subscribed  for  the  same,  paid  a  cer- 
tain sum  and  gave  his  note  for  the  balance,  before  a  day  named  ; 

which  had  not  been  done.  The  suit  was  brought  to  recover  the  money  paid. 
Held,  that  the  parol  promise  to  construct  the  branch  to  Milford,  could  not  be 
proven  as  part  of  the  written  contract  of  subscription  ;  and  hence  the  money  paid 
could,  not  be  recovered  on  the  ground  of  a  breach  of  contract.  2.  A  recovery 
could  not  be  had  on  the  ground  of  fraud :  the  parol  promise  and  representation 
being,  under  the  circumstances,  no  more  than  the  expression  of  an  existing  in- 
tention to  make  the  branch.  3.  Under  the  circumstances  the  company  was  not 
liable  to  repay  the  money. 

See  also  Andi-ews  v.  Ohio  &  Miss.  Railw.  Co.,  14  Ind.  169;  Eakright  v.  L. 
&  N.  Ind.  Railw.,  13  Ind.  404,  where  the  question  of  controlling  written  sub- 
scriptions by  oral  declarations  of  those  who  solicit  them,  as  to  the  probable  route 
of  the  road,  is  further  discussed  and  placed  upon  the  true  ground,  that  such  rep- 
resentations can  have  no  effect,  unless  upon  the  ground  of  fraud.  See  also 
Parker  v.  Thomas,  19  Ind.  213;  Cunningham  v.  E.  &  K.  Railw.  Co.,  2  Head, 
23;  Brownlee  v.  O.,  Ind.  &  111.  Railw.,  18  Ind.  G8. 

There  are  some  cases  which  go  the  length  of  saying  that  as  the  directors  of  a 
railway  company  have  no  power  to  give  any  binding  assurance  as  to  the  route 
which  shall  be  finally  adopted,  it  being  their  duty  to  place  it  where,  in  their 
ultimate  judgment,  the  public  good  requires,- it  is  the  folly  of  any  subscriber  to 
rely  upon  any  such  representation,  and  that  even  where  it  could  be  shown  that 
such  representations  were  fraudulently  made,  to  induce  subscriptions,  and  had 
the  purposed  effect,  the  subscriptions  could  not  be  avoided  on  that  ground. 
Ellison  v.  Mobile  &  Ohio  Railw.,  36  Miss.  572;   Walker  v.  Same,  34  id.  245. 

See  also  Piscataqua  Ferry  Co.  v.  Jones,  39  N.  H.  491.  The  verbal  promise 
of  the  agent  who  takes  up  subscriptions  for  a  railway,  that  the  time  of  payment 
shall  be  delayed  beyond  the  time  named  in  the  charter,  and  which  induces  the 
subscriptions,  is  not  binding  upon  the  company.  Thigpen  v.  Miss.  Central 
Railw.,  32  Miss.  347. 

One  subscribed,  in  1853,  for  twenty  shares  of  the  stock  of  the  P.  &  C.  R.  R. 
Co.,  on  the  express  condition  that  the  company  "should  locate  and  construct 
their  railway  along  the  i-oute  contemplated  by  the  Meyer's  Mill  Plank  Road  Co., 
for  their  road,"  paid  one  instalment,  part  of  the  second,  but  delayed  the  payment 
of  the  residue,  as  the  calls  were  made,  until  the  company,  before  the  road  was 
constructed  along  the  route  mentioned,  suspended  operations,  alter  which  pay- 
ment was  refused  on  the  ground  that  though  the  road  had  been  located  by  the 
company,  they  had  not  constructed  it,  according  to  the  condition  in  the  subscrip- 
tion. In  an  action  brought  by  the  company,  it  was  Held,  1.  That  the  promise 
of  subscription  being  precedent  to  that  of  construction,  upon  the  part  of  the 
company,  the  defendant  could  not  insist  upon  performance  by  the  railroad  com- 
pany, while  he  refused  performance  on  his  part,  and  that  the  road  having  been 
located  as  stipulated,  and  completed  so  far  as  the  means  of  the  company  would 
allow,  it  was  a  compliance  with  the  condition,  and  the  company  were  entitled  to 
recover.  2.  That  the  condition  in  the  contract  of  subscription  was  not  a  condi- 
tion precedent,  and  did  not  require  the  completion  of  the  road  before  payment 
could  be  required,  but  only  that  when  located  and  constructed  it  should  occupy 

[*174] 


188  ASSESSMENTS    OR   CALLS.  PART  II. 

*  it  was  hold  there  was  no  implied  condition  that  the  whole  six 
hundred  shares  should  be  issued,  and  the  failure  to  do  so  was  no 
•ground  lor  allowing  an  action  to  be  maintained  for  the  money 
paid,  or  any  defence  to  the  notes  given  for  the  balance.2 

3.  It  is  an  essential  condition  to  making  calls,  in  those  com- 
panies where  the  number  of  shares  and  the  amount  of  capital  is 

the  route  designated,  the  undertaking  being  on  the  part  of  the  subscriber,  to 
pay,  as  calls  should  be  made  by  the  directors,  and  on  the  part  of  the  company 
to  locate  as  stipulated,  and  construct  as  fast  as  their  means  would  allow. 
3.  That  the  suspension  of  operations  made  by  the  directors  long  after  the  pay- 
ments upon  defendant's  stock  had  been  due,  was  not  a  defence  in  an  action 
brought  against  him  for  the  unpaid  balance  thereon.  Miller  v.  Pittsburg  & 
Connellsville  Railw.,  40  Penn.  St.  237. 

It  was  held  in  one  case  that  where  the  charter  required  subscriptions  by 
responsible  persons  of  a  certain  proportion  of  the  estimated  cost  of  the  work 
before  entering  upon  the  construction,  it  was  not  necessary  for  the  company 
to  show  compliance  with  this  requirement  in  order  to  enforce  calls.  Nor  does  the 
right  to  make  calls  depend  upon  the  extent  or  nature  of  the  indebtedness  of  the 
company ;  nor  can  a  subscriber  defend  against  calls  by  showing  that  a  portion 
of  the  requisite  amount  of  subscriptions  to  bind  the  defendant  were  made  by 
persons  of  no  actual  or  reputed  pecuniary  responsibility,  unless  he  also  show 
that  they  were  not  made  or  taken  in  good  faith.  Penobscot  Railw.  v.  White, 
41  Me.  512.  And  the.  bad  faith  cannot  be  shown  by  the  declarations  of  the 
subscribers,  made  long  after  making  such  subscriptions.  lb.  And  where  the 
charter  of  a  corporation  requires  that  one  thousand  shares  shall  be  subscribed 
before  the  organization  of  the  company,  the  decision  of  the  majority  of  the  sub- 
scribers that  this  condition  has  been  complied  with,  and  the  actual  organization 
of  the  company  in  pursuance  of  the  decision,  are  binding  upon  the  minority.  lb. 
This  will  not  preclude  the  minority  from  defending  on  the  ground  that  the  pro- 
ceedings of  the  majority  were  in  bad  faith.  See  also  Taggart  v.  West  Maryland 
Railw.,  24  Md.  503.  And  where  the  subscriber  gives  the  company  his  note  for 
tin'  sum  required  to  lie  paid  at  the  time  of  subscription,  and  subsequently  pays  the 
same,  his  subscription  is  binding,  and  makes  him  a  member  of  the  company,  and 
he  cannot  escape  the  responsibility  of  his  position  on  account  of  any  previous 
irregularity.  Ogdensburg  Railw.  v.  Wolley,  38  N.  Y.  118.  Subscribers  can- 
not defend  against  calls,  on  the  ground  that  subscriptions  were  taken  for  two 
sections  of  the  road  without  distinguishing  how  much  was  to  be  applied  on  each  ; 
or  on  the  ground  that  the  construction  of  the  road  was  begun  before  twenty  per 
centum  of  each  subscription  was  paid,  according  to  the  requirements  of  the 
charter;  or  that  by  a  subsequent  statute  the  amount  of  capital  stock  required  to 
build  the  road  bad  been  reduced  below  the  requirements  of  the  charter;  or  that 
interest  had  been  paid  on  subscriptions  according  to  the  recommendation  of  the 
terms  of  subscription;  or  that  the  charter  of  the  company  had  been  amended 
by  extending  the  time  for  completing  the  road.  Agricultural  Branch  Railw.  v. 
Wine-luster,  13  Allen,  29, 

*  N  itter  o.  Lexington  &  Wrest  Cambridge  Railw.,  6  Gray,  85. 

[*175, 176] 


§  51.  CONDITIONS   PRECEDENT   TO   MAKING   CALLS.  189 

fixed,  that  the  whole  stock  shall  be  subscribed  before  any  calls  can 
lawfully  be  made.3  And  if  calls  are  made  before  the  requisite 
stock  is  subscribed,  although  the  subscription  is  completed  before 
action  brought,  no  recovery  can  be  had.4  But  it  has  been  held, 
that  the  general  provision  in  the  charter  of  a  railway  act,  that  so 
soon  as  1,500,OOOZ.  shall  have  been  subscribed,  it  shall  be  lawful 
for  the  company  to  put  in  force  all  the  powers  of  the  act,  author- 
izing the  construction  of  the  railway,  and  of  the  acts  therein 
recited,  being  the  general  railway  acts,  did  not  require  such  sub- 
scription to  be  made  before  making  calls,  but  only  before  exercis- 
ing compulsory  powers  of  taking  land.5 

*4.  And  where  the  charter  provides  that  the  members  might 
divide  the  capital  stock  into  as  many  shares  as  they  might  think 
proper,  and  by  a  written  agreement  the  subscribers  fixed  the  cap- 
ital stock  at  850,000,  divided  into  500  shares  of  $100  each,  and 
only  one  hundred  and  thirty-eight  shares  had  been  subscribed,  it 
was  held  no  assessment  for  the  general  purposes  of  the  corporation 
could  be  made.6 

3  Stoneham  Branch  Railway  Co.  v.  Gould,  2  Gray,  277  ;  Salem  Mill-Dam  Co. 
v.  Ropes,  6  Pick.  23  ;  s.  c.  9  Pick.  187  ;  s.  c.  1  Redf.  Am.  Railw.  Cases,  89  ;  Cabot 
&  West  Springfield  Bridge  Co.  v.  Chapin,  6  Cush.  50 ;  Worcester  &  Nashua  Rail- 
way Co.  v.  Hinds,  8  Cush.  110;  Lexington  &  West  Cambridge  Railway  Co.  v. 
Chandler,  13  Met.  311;  N.  Hampshirj  Central  Railway  Co.  v.  Johnson,  10 
Foster,  390. 

But  a  subscriber  for  shares  in  a  railway  company  is  liable  for  calls,  although 
by  a  subsequent  amendment  of  the  charter  of  the  company  the  capital  stock  is 
limited  to  four  thousand  shares,  and  that  number  has  not  been  subscribed,  there 
being  no  such  condition,  either  in  the  charter  of  the  company  or  the  terms  of  sub- 
scription, at  the  time  of  subscribing.  York  &  Cumberland  Railway  v.  Pratt,  40 
Maine,  447.  But  the  number  of  shares  required  by  the  charter  must  be  sub- 
scribed, as  stated  in  the  text.  Penobscot  Railway  v.  Dummer,  40  Maine,  172. 
The  records  of  the  company  are  evidence  of  such  fact.  lb.  Same  v.  White, 
20  Law  Rep.  689 ;  s.  c.  41  Maine,  512 ;  Peake  v.  Wabash  Railw.,  18  111.  88. 

4  Norwich  &  Lowestoft  Navigation  Co.  v.  Theobold,  1  Moody  &  M.  151 ; 
Stratford  &  M.  Railway  Co.  v.  Stratton,  2  B.  &  Ad.  518.  And  see  Atlantic 
Cotton  Mills  v.  Abbott,  9  Cush.  423,  where  a  condition  in  a  subscription  for 
stock,  that  the  capital  stock  of  the  company  should  not  be  less  than  $1,500,000, 
was  held  a  condition  precedent  to  making  calls. 

B  Waterford,  Wexford,  &  W.  Railway  Co.  v.  Dalbiac,  6  Railw.  C.  753;  s.  c. 
4  Eng.  L.  &  Eq.  455.  But  the  American  cases  will  not  justify  such  a  construc- 
tion. It  would  here  be  held  a  condition  precedent  to  the  right  to  make  calls,  or 
even  to  maintain  a  corporate  existence,  probably. 

6  Littleton  Manufacturing  Co.  v.  Parker,  14  N.  Hamp.  543;  Contoocook 
Valley  Railway  Co.  v.  Barker,  32  N.  Hamp.  363. 

Where  the  condition  of  a  bond  given  for  the  amount  of  a  railway  subscription 

[*177] 


190  ASSESSMENTS   OR   CALLS.  PART  II. 

."..  And  where  the  charter  of  a  railway  company  requires  their 
Btock  to  consist  of  not  less  than  a  given  number  of  shares,  assess- 
ments cannot  be  made  before  the  required  number  is  taken.  And 
in  such  case  conditional  subscriptions  are  not  to  be  reckoned,  even 
where  the  condition  is  acceded  to  by  the  company,  if  the  sub- 
scriber  still  repudiates  the  subscription,  on  the  ground  that  the 
condition  is  not  fully  performed  by  the  contract  drawn  up  in  form. 
And  the  plea  of  the  general  issue,  is  no  such  admission  of  the 
existence  of  the  company,  as  to  preclude  subscribers  from  con- 
testing the  amount  of  subscriptions,  to  enable  the  company  to 
make  calls." 

*6.  And  where  the  chatter  originally  required  11,000  shares  to 
be  the  minimum,  and  when  less  than  10,000  were  subscribed,  the 

was,  that  the  same  should  be  paid  when  the  road  was  "  completed"  to  a  certain 
village,  it  was  held  that  the  condition  was  performed  when  the  road  was  made 
to  the  suburbs  of  the  village,  in  such  a  manner,  as  to  allow  daily  trains  on  it, 
carrying  all  the  freight  and  passengers  that  offer,  although  some  portion  of  the 
work  was  only  temporary.  O'Neal  v.  King,  3  Jones,  517  ;  Chapman  v.  Mad 
River  &  Lake  Erie  Railway  Co.,  6  Ohio  (N.  S.),  119. 

7  Oldtown  &  Lincoln  Railw.  Co.  v.  Veazie,  39  Maine,  571.  Any  condition 
the  subscriber  sees  fit  to  annex  to  his  subscription  must  be  complied  with  before 
the  subscriber  is  liable  to  assessments.  Penobscot  &  Kennebec  Railw.  Co.  v. 
Dunn,  39  Maine,  587. 

A  condition,  that  not  more  than  five  dollars  on  a  share  shall  be  assessed  at 
one  time,  is  not  violated  by  two  or  more  assessments  being  made  at  one  time,  if 
only  five  dollars  is  required  to  be  paid  at  one  time.  lb.  Penobscot  Railw.  v. 
Dummer,  10  Maine,  172.  And  the  same  principle  already  stated,  that  where  the 
conditions  of  a  subscription  required  seventy-five  per  cent  of  the  estimated  cost 
of  any  section  of  the  road  to  be  subscribed,  by  responsible  persons,  before  its 
ructi  m  should  be  commenced,  if  the  subscriptions  were  obtained  in  good 
faith,  assessments  will  be  valid,  although  some  of  the  subscriptions  to  make  up 
the  amount,  prove  worthless,  is  here  also  maintained.     lb. 

And  where  the  (barter  of  the  company  requires  that  the  capital  stock  be  not 
li  38  than  l\w  hundred,  nor  more  than  ten  thousand  .-hares,  of  $100  each,  and 
authorizes  the  directors  to  assess  upon  five  hundred  shares,  as  soon  as  subscribed, 
and  from  time  to  time  to  enlarge  the  capital  to  the  maximum  amount  named  in 
the  charter,  all  the  shares  to  be  equally  assessed,  it  is  not  necessary  for  the  com- 
pany to  define  their  capital,  within  the  prescribed  limits,  before  making  calls. 
White  Mountains  Railw.  v.  Eastman,  34  N.  II.  121. 

•  '  is  doubtful  if  the  directors  of  a  railway  have  power  to  release  subscribers  to 
Btock,  but  at  all  events,  where  the  release  is  optional  with  the  subscriber,  he  must 
make  his  i  lei  tion  to  be  released,  and  in  a  reasonable  time.  Penobscot  &  Ken. 
Railw.  v.  Dunn,  39  .Maine,  587.  See  also  Troy  &  Greenfield  Railw.  v.  Newton, 
-  i.  a  .       6. 

[*178] 


§  51.  CONDITIONS    PRECEDENT    TO    MAKING    CALLS.  191 

company  was  organized,  and  the  subscriptions  accepted,  and 
assessments  made,  and  afterwards,  by  an  act  of  the  legislature, 
accepted  by  the  corporation,  the  minimum  was  reduced  to  8,000 
shares,  in  an  action  to  recover  assessments,  made  on  defendant's 
shares,  before  and  after  such  alteration  of  the  charter,  it  was  held : 

1.  That  the  minimum  was  a  condition  precedent,  to  be  fulfilled 
by  the  corporation,  before  the  subscribers  were  liable  to  assess- 
ments. 

2.  That  the  alteration  of  the  charter  will  not  affect  prior  sub- 
scribers. 

3.  Nor  will  the  defendant  be  estopped  from  relying  upon  this 
condition,  by  having  acted  as  a  shareholder  and  officer  in  the  cor- 
poration, and  contributed  towards  the  expenses  of  the  company. 

4.  That  corporators,  by  any  acts  or  declarations,  cannot  relieve 
the  corporation  from  its  obligation,  to  possess  the  capital  stock 
required  by  its  charter.8 

7.  Where  the  charter  of  a  railway  company  provided  for  assess- 
ments by  the  directors  of  the  company  upon  the  shares  of  the 
stock",  as  they  might  deem  expedient  and  necessary  in  the  execu- 
tion and  progress  of  the  work,  provided  "  that  no  assessment  shall 
be  laid  upon  any  share  in  said  corporation  of  a  greater  amount 
than  one  hundred  dollars  in  the  whole,  .  .  .  and  if  a  greater 
amount  of  money  shall  be  necessary  to  complete  said  road  it  shall 
be  raised  by  creating  new  shares,"  it  was  held  that  the  charter 
limited  the  amount  of  all  the  assessments  to  one  hundred  dollars 
on  a  share,  and  that  assessments  beyond  that  sum,  made  for  the 
purpose  of  paying  the  debts  of  the  company,  were  illegal.8 

*  8.  Where  the  charter  of  a  railway  company  fails  to  fix  the 
number  of  shares  of  the  capital  stock,  it  must  be  presumed  to  have 
been  the  purpose  of  the  legislature  that  the  corporation  should 
limit  the  number.  And  this  must  be  done  before  any  valid  as- 
sessments can  be  made.  In  such  case,  if  the  number  fixed  exceed 
the  number  subscribed,  the  company  may  change  the  number; 
but  the  assessments  must  be  made  upon  the  whole  number,  and 
if  an  assessment  be  made  before  the  number  ultimately  fixed  is 
subscribed,  it  will  be  irregular  and  void.  A  subscriber  who  has 
paid  one  assessment  is  not  thereby  precluded  from  insisting  upon 
this  irregularity  in  defence  to  others.9 

8  Great  Falls  &  Conway  R.  Co.  v.  Copp,  38  N.  H.  124. 

9  Som.  &  Ken.  R.  Co.  v.  Cushing,  45  Me.  524. 

[*179] 


192  ASSESSMENTS   OR    CALLS.  PART  II. 

9.  Where  the  charter  of  a  railway  company  as  originally  granted 
limited  the  amount  of  stock  at  a  point  which  the  subscription 
never  readied,  but  by  a  subsequent  alteration  of  the  charter  the 
amount  of  the  capital  stock  was  reduced,  and  after  the  subscrip- 
tions reached  that  amount  the  company  was  duly  organized,  it  was 
held  that  the  alteration  in  the  charter  did  not  release  prior  sub- 
scribers.10    But  this  seems  questionable.11 


SECTION    VI. 

Calls  may  be  made  payable  by  Instalments. 

§  52.  It  was  at  one  time  considered  that  calls  made  payable  by 
instalments  were  invalid.1  But  it  seems  now  to  be  settled  that 
such  mode  of  making  calls,  where  the  directors  of  the  company 
have  an  unlimited  discretion,  as  to  the  time  and  mode  of  requiring 
payments  of  the  subscriptions,  is  unobjectionable.2  But  where 
the  subscription  contains  a  provision,  that  payment  shall  be 
made,  at  such  times  and  places  as  should  thereafter  be  directed 
by  the  directors,  and  shall  be  applied  to  the  construction  of  the 
road,  it  was  held,  that  the  subscription  did  not  become  payable, 
until  the  directors,  at  a  regular  meeting,  had  fixed  the  time  *  and 
place  of  payment.3  But  it  is  further  held,  in  this  case,  that  it  is 
not  necessary  to  give  notice  to  the  subscribers  of  the  time  and 
place  of  payment.3  This  point  in  the  decision  seems  not  altogether 
in  accordance  with  the  usual  practice  in  such  cases,  or  the  general 
course  of  decision  in  regard  to  calls,  which  upon  general  principles 
must  be  notified  to  subscribers  before  an  action  can  be  maintained. 
But  where  the  subscription  is  made  payable  in  instalments  of  ten 
per  cent  every  sixty  days  as  the  work  progresses,  it  is  not  impor- 
tant that  any  formal  call  or  demand  be  made  for  the  successive 
payments.4 

10  Bedford  Railw.  Co.  v.  Bowser,  48  Perm.  St.  29. 
"  Ante  pi.  6  n.  8. 

1  Ambergate,  N.  &  Boston  &  E.  J.  R.  v.  Coultbard,  5  Exch.  459;  Stratford 
&  M.  It.  v.  Stratton,  2  B.  &  Ad.  518. 

2  London  &  N.  W.  R.  v.  M'Michael,  6  Exch.  273;  Ambergate  R.  v.  Nor- 
eliffe,  6  Exch.  629;  s.  c.  4  Eng.  L.  &  Eq.  461 ;  Birkenhead,  L.  &  Ch.  R.  v. 
Webster,  6  Exch.  277  ;  s.  c.  6  Railw.  C.  498. 

3  Ross  v.  Lafayette  &  Ind.  Railw.,  6  Porter  (Ind.),  297. 

4  Breedlove  v.  M  &  F.  Railw.,  12  Ind.  114 ;  Smith  v.  Ind.  &  111.  Railw.,  id.  61. 

[*180] 


§53. 


PARTY    LIABLE    FOR    CALLS. 


193 


Where  the  charter  gives  the  corporation  power  to  collect  sub- 
scriptions to  the  capital  stock  by  such  instalments  as  the  president 
and  directors  shall  deem  proper,  they  may  make  contracts  with 
subscribers  for  the  payment  of  subscriptions  in  any  reasonable  in- 
stalments, as  to  time  and  place,  and  if  such  condition  were  ultra 
vires,  it  would  render  the  whole  contract  void,  and  not  the  con- 
dition merely.5 


SECTION    VII. 

Party  liable  for   Calls. 


1.  Subscribers  liable  to  calls. 

2.  G.    ]Yhat  constitutes  subscription  to  a  cajti- 

tal  stock. 

3.  How  a  purchaser  of  stock  becomes  liable  to 

the  company. 

4.  One  may  so  conduct  as  to  estop  him  from 

denying  his  liability. 

5.  The  register  of  the  company  evidence  of 

membership. 

6.  Subscriptions  must  be  made  in  conformity 

to  charter. 

7.  Transferee   liable  for   calls.     Subscriber 

also  in  some  cases. 


8.  Original  books  of  subscription  primary 

evidence. 

9.  If  lost  secondary  evidence  admissible. 

10.  What  acts  will  constitute  one  a  share- 

holder. 

11.  May  take  and  negotiate  or  enforce  notes 

for  subscriptions. 

12.  But   note  fraudulently  obtained  not  en- 

forceable. 

13.  Subscriptions   as   executor   distinct   con- 

tracts from  those  in  private  capacity. 


§  53.  1.  All  the  original  subscribers  to  the  stock  in  a  railway 
company  are  usually  made  liable  to  calls,  by  the  charter  of  the 
company,  or  by  general  statute. 

2.  Some  question  has  arisen  in  the  English  courts,  as  to  what 
is  necessary  to  constitute  one  a  subscriber.  In  an  early  case l 
*  upon  this  subject,  it  was  held,  that  the  word  "  subscriber,"  in  the 
act  of  parliament  constituting  the  company,  applied  only  to  those 
who  had  stipulated  that  they  would  make  payment,  and  not  to  all 
those  who  had  advanced  money ;  and  that  one,  who  was  named  in 
the  recital  of  the  act,  as  one  of  the  original  proprietors,  and  who 
had  paid  a  deposit  on  eight  shares,  but  who  had  not  signed  any 
contracts,  was  not  a  subscriber  within  the  meaning  of  the  act,  and 
not  liable  to  be  sued  by  the  directors  for  calls  on  the  remainder  of 
such  shares. 

5  Roberts  v.  Ohio  &  Mobile  Railw.,  32  Mississippi,  373. 
1  Thames  Tunnel  Company  v.  Sheldon,  6  B.  &  C.  341. 

13  [*181] 


194  ASSESSMENTS   OR   CALLS.  PART  II. 

3.  This  is  the  generally  received  opinion  upon  that  subject,  in 
tins  country.  In  one  case,2  a  plea  to  an  action  to  recover  calls  on 
stock  subscribed,  that  another  person  had  agreed  to  take  the  stock, 
and  thai  the  commissioners  had  counted  this  stock  to  such  other 
person,  is  insufficient.  The  signature  of  the  first  subscriber  should 
have  been  erased,  and  that  of  the  other  substituted,  or  something 
done  to  hold  the  latter  liable.  A  subscriber  for  stock  cannot  sub- 
rogate another  person  to  his  obligation,  without  a  substitution  of 
his  name  upon  the  books  of  the  company,  or  some  other  equivalent 
act  recognized  by  the  charter  and  by-laws  of  the  company. 

4.  But  the  principal  difficulty,  in  regard  to  liability  for  calls, 
arises,  where  there  have  been  transfers,  and  the  name  of  the  trans- 
feree not  entered  upon  the  books  of  the,  company.  For  whenever 
the  name  of  the  vendee  of  shares  is  transferred  to  the  register  of 
shareholders,  the  cases  all  agree  that  the  vendor  is  exonerated, 
(unless  there  is  some  express  provision  of  law,  by  which  the  liabil- 
ity of  the  original  subscriber  still  continues,)  and  the  vendee 
becomes  liable  for  future  calls.3  And  the  vendee  having  made 
such  representation  to  the  company,  as  to  induce  them  to  enter  his 
name  upon  the  register  of  shares,  is  estopped  to  deny  the  validity 
of  the  transfer.4  And  even  where  the  party  has  represented  him- 
self to  the  company  as  the  owner  of  shares,  and  sent  in  scrip  cer- 
tificates, which  had  been  purchased  by  him,  claiming  to  be  registered 
as  a  proprietor,  in  respect  thereof,  and  had  received  from  the  com- 
pany receipts  therefor,  with  a  notice  that  they  would  be  exchanged 
*  for  sealed  certificates  on  demand,  he  was  held  estopped  to  deny 
his  liability  for  calls,  although  his  name  had  not  been  entered  upon 
the  register  of  shareholders,  or  any  memorial  of  transfer  entered, 
as  required  by  the  act.5  And  where  one  has  paid  calls  on  shares, 
or  attended  meetings  of  the  company,  as  the  proprietor  of  shares, 
he  is  estopped  to  deny  such  membership.6 

2  Ryder  v.  Alton  &  Sangamon  It.,  13  111.  51G. 

3  Sheffield  &  A^hton-under-Lyne  &  Man.  R.  v.  Woodcock,  2  Railw.  C.  522; 
s.  c.  7  M.  &  W.  574  ;  London  &  Grand  J.  R.  v.  Freeman,  2  Railw.  C.  468;  s.  c. 
iJ  M.  &  <;.  606;  post,  §54. 

4  Sheffield,  Ash.  &  M.  R.  v.  Woodcock,  supra;  London  &  Grand  J.  R.  v. 
Freeman,  supra. 

•  (  beltenbam  &  Great  Western  Union  R.  v.  Daniel,  2  Q.  B.  281,  and  Same 
v.  Medina.  2  Railw.  < '.  728.  And  this  being  matter  of  estoppel  in  pais,  may  be 
used  in  evidence,  in  answer  to  the  defence,  without  being  pleaded. 

6  London  &  Grand  J.  R.  v.  Graham,  2  Railw.  C.  870;  s.  c.  1  Q.  B.  271. 

[*182] 


§  53.  PARTY    LIABLE    FOR    CALLS.  195 

5.  The  holders  of  scrip  certificates  are  properly  entered  as  pro- 
prietors of  shares  before  the  passing  of  the  act,  although  they  have 
neither  signed  the  parliamentary  contract,  nor  been  original  sub- 
scribers ;  and  the  register-book  of  shareholders,  which  is  required 
by  the  statute  to  be  kept  in  a  prescribed  form  by  the  company, 
though  irregularly  kept,  is  prima  facie  evidence  who  are  proprie- 
tors.7 

6.  The  subscription  for  stock  to  be  valid,  must  be  made  in  con- 
formity with  the  act.  So  that  where  it  was  required  to  be  made 
in  such  form  as  to  bind  the  subscriber  and  his  heirs,  it  was  deemed 
requisite  to  be  made  under  seal.8  But  such  a  provision  is  of  no 
force  in  this  country,  simple  contracts  being  of  the  same  force  as 
against  heirs  as  specialties. 

7.  If  by  the  act  of  incorporation  the  shares  are  made  assignable 
without  restriction,  and  no  express  provision  exists  in  regard  to 
the  party  liable  for  calls,  it  would  seem  to  follow,  upon  the  general 
principles  of  the  law  of  contract,  that  the  proprietor  of  the  share, 
for  the  time  being,  is  liable  for  calls.  And  where  certain  formali- 
ties are  requisite  in  the  transfer  of  shares,  and  these  have  been 
complied  with  on  the  part  of  the  transferee,  or  waived  by  the  com- 
pany at  his  request,  his  liability  to  calls  then  attaches.9  The  liabil- 
ity of  the  original  subscriber  often  continues,  at  the  election  of  the 
*  company,  after  that  against  the  vendee  attaches,  but  when  the  com- 
pany consent  to  accept  the  name  of  the  transferee,  that  of  the  sub- 
scriber, or  former  proprietor,  ceases.10 

8.  It  seems  to  be  regarded  as  settled  law,  that  the  best  evidence 
of  an  original  subscription  to  the  capital  stock  of  a  railway  company 
is  the  production  of  the  original  subscription  book,  or  the  book  of 
records  of  the  company  on  which  the  subscriptions  were  made.11 

7  Birmingham,  Boston  &  Th.  J.  R.  v.  Locke,  2  Railw.  C.  867 ;  s.  c.  1  Q.  B. 
256.      - 

8  Croinford  &  High  Peak  R.  v.  Lacey,  3  Y.  &  Jer.  80.     See  ante,  §  18,  n.  2. 

9  Huddersfield  Canal  Co.  v.  Buckley,  7  T.  R.  36  ;  Aylesbury  R.  v.  Mount,  5 
Scott,  New  R.  127  ;  West  Philadelphia  Canal  Co.  v.  Innes,  3  Whart.  198 ;  Mann 
v.  Currie,  2  Barb.  Sup.  Ct.  294;  Hall  v.  U.  S.  Insurance  Co.,  5  Gill,  484;  Bend 
v.  Susquehannah  Bridge  Co.,  6  Har.  &  J.  128;  Angell  &  Ames,  ch.  15,  §  534. 

10  Post,  §  54. 

11  Graff  v.  Pittsburgh  &  Steubenville  Railw.  Co.,  31  Penn.  St.  489.  These 
subscriptions  are,  in  fact,  sometimes  made  upon  different  books,  and  then 
brought  together  upon  one  book,  for  the  purpose  of  permanent  preservation. 
But  it  would  seem  there  should  be  evidence  of  the  original  subscription. 

[*183] 


196  ASSESSMENTS    OR   CALLS.  PART  II. 

9.  But  where  the  books  are  shown  not  to  be  in  the  proper  place 
of  deposit  and  custody,  and  no  trace  can  be  found  of  their  present 
existence  elsewhere,  secondary  evidence  is  admissible.  And  the 
court  decide  the  question  of  loss,  as  a  preliminary  one  to.  the  admis- 
sion of  the  secondary  evidence.11 

10.  One  who  accepts  a  subscription  made  by  another  on  his 
behalf,  and  pays  the  calls  made  thereon  and  receives  a  certificate  of 
ownership,  is  responsible  as  a  shareholder ;  and  it  makes  no  differ- 
ence that  his  name  does  not  appear  upon  the  transfer  books  or  the 
alphabetical  list  of  stockholders  as  a  transferee  of  stock.  And  one 
may  become  a  shareholder  without  receiving  a  certificate  of 
stock.12 

11.  It  seems  clear  that  railway  companies  may  accept  promis. 
sory  notes  in  payment  of  subscriptions,  and  either  negotiate  or 
enforce  them  by  suit.13  The  questions  of  pleading  and  evidence 
which  may  be  raised  in  suits  upon  such  notes  are  extensively  dis- 
cussed in  the  case  last  cited. 

12.  And  where  the  subscription  to  railway  stock  is  dependent 
upon  the  condition  that  no  calls  shall  be  made  until  work  should 
be  begun  upon  a  particular  section  of  the  road,  and  the  subscriber 
was  induced  to  execute  his  note  for  the  amount  upon  the  rep- 
resentation of  the  agents  of  the  company  that  work  had  been 
so  commenced,  when  in  fact  it  had  not,  the  note  cannot  be  en- 
forced.14 

*  13.  Subscriptions  in  the  capacity  of  executor  are  to  be  regarded 
as  distinct  contracts  from  those  in  the  personal  capacity  of  the 
subscriber,  so  that  the  pendency  of  a  suit  for  one  will  not  abate  or 
render  vexatious  a  subsequent  suit  for  the  other.15 

12  Burrr.  Wilcox,  6  Bosw.  198. 

13  Goodrich  v.  Reynolds,  31  111.  490.     See  also  Straus  v.  Eagle  Ins.  Co.,  5  ' 
Ohio  (N.S.),  59. 

14  Taylor  v.  Fletcher,  15  Ind.  80. 

15  New  York  City  &  Erie  Railw.  v.  Patrick,  39  N.  Y.  256. 
[*184] 


§54. 


RELEASE    PROM   LIABILITY   FOR   CALLS. 


197 


SECTION     VIII. 


Release  from  liability  for   Calls. 


1,  2.  Where  the  transfer  of  shares,  without 
registry,  will  relieve  the  proprietor  from 
calls. 

8.  Where  shares  are  forfeited,  by  express  con- 
dition, subscriber  no  longer  liable  for  calls. 


4.  Dues  cannot  be  enforced  which  accrue  upon 
shares  afier  they  were  agreed  to  be  can- 
celled. 


§  54.  1.  One  may  relieve  himself  of  his  liability  for  calls,  by 
the  transfer  of  his  shares,  and  the  substitution  of  the  name  of  his 
assignee  for  his  own  upon  the  books  of  the  company.  But  until 
this  change  upon  the  books  of  the  company  is  made,  they  are  at 
liberty  to  hold  the  original  subscriber  liable,  if  they  so  elect.1 
But  where  the  act  of  incorporation  of  a  joint-stock  company  de- 
clared the  shares  should  be  vested  in  subscribers,  their  executors 
and  assigns,  with  power  to  the  subscribers  to  assign  their  shares, 
and  a  committee,  to  be  appointed  under  the  act,  were  authorized 
to  make  calls  upon  the  proprietors  of  shares,  it  was  held,  that  an 
original  subscriber,  who  had  transferred  his  shares,  was  no  longer 
liable  to  calls.2 

2.  But  this  case  is  determined  upon  the  express  provisions  of 
the  charter  of  the  company.  The  general  rule,  in  England,  at  pres- 
ent, under  their  consolidated  acts,  is  undoubtedly  as  stated  above. 
And  we  see  no  good  reason  why  it  should  not  equally  apply  in  this 
country.  It  would  seem  to  be  the  only  mode  of  securing  the  ulti- 
mate payment  of  calls.  But  some  of  the  cases  seem  to  assume,  that 
the  mere  transfer  of  the  shares  in  the  market  *does  exonerate 
the  subscriber  from  the  payment  of  future  calls.  But  this  depends 
chiefly  upon  the  provisions  of  particular  charters,  and  the  general 
laws  of  the  state  applicable  to  the  subject.3 

1  Ante,  §  47,  and  cases  there  cited.  In  Everhart  v.  West  Chester  and  Phila- 
delphia Railw.,  28  Penn.  St.  339,  it  is  said  that  a  transfer  of  stock,  made  for  the 
purpose  of  exonerating  a  subscriber,  without  the  consent  of  the  company,  is  not 
a  valid  defence  to  an  action  against  him  for  the  purchase-money  of  the  shares 
subscribed.     Ante,  §  32. 

2  Huddersfield  Canal  Company  v.  Buckley,  7  T.  R.  3G,  42. 

3  In  West  Philadelphia  Canal  Co.  v.  Innes,  3  Whart.  198,  it  was  held,  that 
where  the  proprietor  of  shares  of  the  plaintiff's  stock  transferred  them  upon  the 

[*185] 


198  ASSESSMENTS    OR    CALLS.  PART  II. 

3.  Where  shares  are  allotted  to  one  upon  the  express  condition 
to  be  forfeited  if  a  certain  deposit  is  not  paid  in  a  certain  time,  and 
nothing  more  is  done  by  the  allottee,  he  is  not  liable  for  calls, 
although  the  company  have  entered  his  name  upon  the  register  of 
shares  as  a  shareholder.4 

4.  Where  the  corporation  resolve  to  release  subscribers  and  to 
cancel  their  stock  upon  making  certain  payments,  which  are  made ' 
and  the  stock  cancelled,  the  company  cannot  enforce  any  dues  on 
such  shares  which  subsequently  accrue,5  since  the  former  arrange- 
ment amounted  to  an  accord  and  satisfaction  of  all  claim  on  the 
part  of  the  company.  But  if  the  company  thereby  materially 
lessened  the  remedy  of  creditors,  they  might  possibly  interfere. 

books  of  the  company,  after  calls  were  made,  but  before  they  fell  due,  that  the 
transferee  was  liable  for  such  calls,  although  he  had  never  received  certificates, 
or  given  notice  of  the  acceptance  of  the  transfer.  And  it  was  held  to  make  no 
difference,  that  the  transfer  was  from  an  original  subscriber,  witliout  considera- 
tion, and  that  the  holder  is  nevertheless  liable  for  unpaid  calls.  Mann  v.  Pentz, 
2  Sandf.  Ch.  258;  Hartford  &  New  H.  R.  v.  Boorman,  12  Conn.  530;  Ayles- 
bury R.  v.  Mount,  5  Scott,  New  R.  127. 

•  Waterford,  Wexford,  Wicklow  &  D.  R.  v.  Pidcock,  18  Eng.  L.  &  Eq.  517 ; 
8.  c.  17  Jur.  26 ;  s.  c.  22  Law  J.  Rep.  (N.  S.)  Exch.  146 ;  s.  c.  8  Exch.  279. 
Where  the  company  accept  a  conveyance  of  shares  to  themselves,  it  will  exoner- 
ate the  owner  from  calls.  But  a  sale  to  another  company  of  all  the  effects  of  the 
company,  will  not  release  the  shareholders  from  calls  already  made.  Plate  Glass 
Insurance  Co.  v.  Sunley,  8  El.  &  Bl.  47. 

5  Miller  v.  Second  Jefferson  Building  Association,  50  Penn.  St.  32.  And 
where  the  company  accept  another  in  the  place  of  the  original  subscriber,  the 
latter  is  wholly  released.     Haynes  v.  Palmer,  13  La.  Ann.  240. 

[*185] 


55. 


DEFENCES   TO    ACTIONS    FOR   CALLS. 


199 


♦SECTION     IX. 


Defences  to  actions  for   Calls. 


1.  Informality  in  organization  of  company 

insufficient. 

2.  Slight  acquiescence  estops  the  party  in  some 

cases. 

3.  4.  Default  in  first  payment  insufficient. 

5.   Company  and  subscriber  may  ivaive  that 
condition. 


6.  Contract  for  stock,  to  be  paid  in  other 

stock. 

7,  8.  Infancy.     Statute  of  limitations  and 

bankruptcy. 
9.   One  commissioner  can  give  no  valid  as- 
surance as  to  the  route. 
10.    What  representations  matters  of  opinion. 


§  55.  1.  It  is  certainly  not  competent  for  a  subscriber,  when 
sued  for  calls,  to  go,  in  his  defence,  into  every  minute  deviation 
from  the  express  requirements  of  the  charter,  in  the  organization 
and  proceedings  of  the  company.  Any  member  of  the  association, 
who  intends  to  hold  the  company  to  the  observance  of  those  mat- 
ters which  are  merely  formal,  should  be  watchful,  and  interpose 
an  effectual  barrier  to  their  further  progress,  at  the  earliest  oppor- 
tunity, by  mandamus,  or  injunction  out  of  chancery,  or  other  ap- 
propriate mode.1  In  cases  of  this  kind  often,  where  vast  expense 
has  been  incurred,  and  important  interests  are  at  stake,  courts 
will  incline  to  conclude  a  member  of  the  association,  by  the 
briefest  acquiescence  in  any  such  immaterial  irregularity,  and 
often,  in  regard  to  those,  which,  if  urged  in  season,  might  have 
been  regarded  as  of  more  serious  moment.  In  one  case,1  Tindal, 
C.  J.,  says,  in  regard  to  the  offer  of  a  plea,  that  the  money  sued 
for,  being  the  amount  of  a  call,  was  intended  for  other  purposes 
than  those  warranted  by  the  act,  "  It  seems  to  me  it  was  never  in- 
tended, nor  ought  it  to  be  allowed,  that  so  general  a  question  as 
that    should  be  litigated,  in  the  question,  whether  a  call  is  due 

1  The  London  &  Brighton  Railw.  Co.  v.  Wilson,  6  Bing.  N.  C.  135.  This 
case  decides,  that  a  plea,  that  the  company  had  made  deviations  in  their  line,  and 
that  the  money  sued  for  was  needed  only  in  regard  to  such  deviations,  could  not 
be  entertained  or  regarded  as  a  proper  inquiry  in  an  action  for  calls  upon  shares  ; 
and  so  also  of  a  plea,  that  fewer  shares  had  been  allotted  than  the  act  required. 
Walford,  279;  Wight  v.  Shelby  Railway,  16  B.  Monr.  5.  Nor  can  a  share- 
holder defend  against  a  suit  to  enforce  his  personal  liability  for  the  debts  of  the 
corporation,  on  the  ground  of  defects  in  the  organization  of  the  company  ;  espe- 
cially where  he  has  acted  as  a  member,  and  his  name  so  appeared,  when  the  debt 
was  contracted.     Eaton  v.  Aspinwall,  19  N.  Y.  119. 

[*186] 


200  ASSESSMENTS   OR   CALLS.  PART  II. 

from  an  individual  subscriber."  And  it  was  held  no  sufficient 
ground  of  enjoining  the  directors  from  making  calls,  that  the 
proceedings  had  been  such  as  to  amount  to  an  abandonment  of 
the  enterprise,  as  it  was  possible  that  there  were  still  legal  obliga- 
tions *  to  answer.2  And  where  the  directors  were  authorized  to 
limit  the  number  of  shares,  but  could  not  proceed  with  the  road 
until  two  hundred  and  fifty  shares  were  subscribed,  and  after  that 
number  were  taken  they  resolved  to  close  the  books,  it  was  held 
that  this  vote  was  equivalent  to  a  vote  fixing  the  number  of  shares, 
and  that  the  company  might  therefore  proceed  to  make  and  en- 
force calls,  under  the  statute,  and  to  collect  the  deficiency  remain- 
ing, after  the  sale  of  forfeited  stock.3 

2.  But  where  the  statute  prescribes  the  terms  on  which  shares 
may  be  sold,  it  must  be  strictly  followed,  or  the  sale  will  be  void, 
as  where  the  prescribed  notice  is  not  given.4  And  it  would  seem, 
that  the  courts  are  reluctant  to  admit  defences  to  actions  for  calls, 
upon  the  ground  of  informality  in  the  proceedings  of  the  com- 
pany, or  even  of  alleged  fraud,  where  there  has  been  any  consid- 
erable acquiescence  on  the  part  of  the  shareholder.5 

3.  It  seems  to  have  been  held,  in  some  cases,  that  a  subscriber 
for  stock  may  defend  against  an  action  for  calls,  upon  the  ground 
that  he  did  not  pay  the  amount  required  by  the  charter  to  be  paid 
down  at  the  time  of  subscription.6 

4.  But  it  is  questionable  how  far  one  can  be  allowed  to  plead  his 
own  non-performance  of  a  condition  in  discharge  of  his  undertak- 
ing. And  a  different  view  seems  to  have  obtained  to  some  extent.7 
It  has  been  held  the  stockholder  cannot  object,  that  he  has  not 
complied  with  the  charter,  after  having  voted  at  the  election  of 
officers,  or  otherwise  acted  as  a  shareholder.8     And  so  also  where 

2  Logan  v.  Courtown,  5  Eng.  L.  &  Eq.  171. 

3  Lexington  &  West  Cambridge  R.  v.  Chandler,  13  Met.  311. 
*  Portland,  Saco,  &  Portsmouth  R.  v.  Graham,  11  Met.  1. 

5  Walford,  278,  279 ;  Cromford  &  High  P.  R.  v.  Lacey,  3  Y.  &  Jer.  80 ; 
Mangles  v.  Grand  Collier  Doek  Co.,  10  Sim.  519  ;  s.  c.  2  Railw.  C.  359  ;  Thorpe 
r.  Hughes,  3  Mylne  &  Cr.  742. 

6  Highland  Turnp.  Co.  v.  MeKean,  11  Johns.  98;  Jenkins  v.  Union  Turnp. 
Co.,  1  ( laines's  Cas.  in  Error,  86 ;  Hibernia  Turnpike  Co.  v.  Henderson,  8  S.  & 
II.  219  ;  Charlotte  &  C.  R.  v.  Blakely,  3  Strob.  245. 

:   Henry  v.  The  Vermilion  R.,  17  Ohio,  187.    A  similar  rule  is  recognized  in 
Louisiana,  in  the  case  of  Vicks.  S.  &  Texas  Railw.  v.  MeKean,  12  La.  Ann.  038. 
8  Clark  v.  Monongahela  Nav.  Co.,  10  Watts,  36L     Nor  can   a  subscriber, 
[*187] 


§  55.  DEFENCES  TO  ACTIONS  FOR  CALLS.  201 

*  the  subscription  is  made,  while  defendant  held  the  books  of  the 
company  and  acted  as  commissioner.9  And  payment  before  the 
books  are  closed,  has  been  held  sufficient  to  bind  the  subscriber.10 
So  also  if  the  sum  have  been  collected  by  suit.11  And  a  prom- 
issory note  has  been  held  good  payment,  where  the  charter  re- 
quired cash  on  the  first  instalment,  at  the  time  of  subscription.12 
And,  by  parity  of  reason,  if  the  subscription  binds  the  subscriber 
to  pay  for  the  stock  taken,  in  conformity  to  the  requisitions  of  the 
charter,  which  is  the  more  generally  received  notion  upon  the  sub- 
ject at  present,  we  do  not  well  comprehend  why  the  subscription 
itself  may  not  be  regarded  as  effectual,  to  create  the  subscriber  a 
stockholder,  and  as  much  a  compliance  with  the  condition  to  pay, 
as  giving  a  promissory  note.     In  either  case,  the  company  obtain 

after  having  transferred  his  stock  to  another,  thus  treating  it  as  a  valid  security, 
object,  in  the  trial  of  a  suit  against  him  on  the  original  subscription,  that  the 
same  was  originally  invalid,  by  reason  of  the  non-payment  of  the  sums  requisite 
to  give  it  validity,  at  the  time  of  making  the  subscription.  Everhart  v.  West 
Chester  &  Ph.  Railw.,  28  Penn.  St.  339. 

And  where  commissioners  were  appointed,  by  an  act  of  the  legislature,  and 
were  authorized  to  receive  subscriptions  for  the  purpose  of  constructing  a  rail- 
way, no  subscription  to  be  valid  unless  five  dollars  was  paid  upon  each  share 
at  the  time  of  subscribing ;  the  act  providing  that  when  a  certain  number  of 
shares  shall  have  been  so  subscribed,  and  the  same  certified  under  the  oath  of  the 
commissioners  to  the  governor,  he  should  issue  letters-patent,  incorporating 
the  subscribers,  and  such  as  should  thereafter  subscribe,  and  this  was  done,  and 
the  company  duly  organized,  it  was  held  : 

That  the  act  imposed  no  restriction  upon  the  corporation  after  it  was  organ- 
ized, in  regard  to  the  payment  of  the  five  dollars  at  the  time  of  subscription. 
That  the  condition,  that  subscriptions  should  not  be  valid  till  a  certain  amount 
was  subscribed,  was  one  which  the  parties  had  a  right  to  annex  to  the  contract 
of  subscription,  and  as  such,  was  valid,  and  the  subscriptions  could  not  be  en- 
forced till  the  condition  was  performed.  Philadelphia  &  West  Chester  Railw. 
v.  Hickman,  28  Penn.  St.  318.  See  also  Black  River  &  Utica  Railw.  Co.  v. 
Clarke,  25  JSf.  Y.  208;  H.  &  P.  Plank  Road  Co.  v.  Bryan,  6  Jones  Law,  82; 
Piscataqua  Ferry  Co.  v.  Jones,  39  N.  H.  491. 

9  Highland  Turnp.  Co.  v.  McKean,  11  Johns.  98;  Grayble  v.  The  York  & 
Gettysburg  Turnp.  Co.,  10  Serg.  &  Rawle,  269.  So  also  if  one  act  as  a  stock- 
holder in  the  organization  of  the  company.  Greenville  &  Columbia  Railw.  v. 
Woodsides,  5  Rich.  145. 

10  Klein  v.  Alton  &  Sangamon  Railw.,  13  111.  514. 

11  Hall  v.  Selma  &  Ten.  Railw.,  6  Alabama,  741. 

12  McRae  v.  Russell,  12  Ired.  224;  Selma  &  Ten.  Railw.  v.  Tipton,  5  Ala- 
bama, 787;  Tracy  v.  Yates,  18  Barb.  152;  Greenville  &  Columbia  Railw.  v. 
Woodsides,  5  Rich.  145 ;  Mitchell  v.  Rome  Railw.,  17  Georgia,  574. 

[*188] 


202  ASSESSMENTS  OR  CALLS.  PART  II. 

but  a  right  of  action  for  the  money,  and  if  the  party  can  be 
allowed  to  urge  bis  own  default  in  defence,  it  is  perhaps  no  com- 
pliance with  the  charter.  But  upon  the  ground  that,  so  far  as  the 
subscriber  is  concerned,  the  company  may  waive  this  condition, 
upon  what  is  equivalent  to  payment,  it  ought  also  to  be  equally 
1k1<1.  that  when  *  the  subscriber  has  obtained  such  a  waiver,  for 
his  own  case,  he  shall  be  estopped  to  deny,  that  it  was  so  far  a 
compliance  with  the  charter  as  to  render  the  contract  binding. 

5.  And,  upon  the  other  hand,  the  company  having  consented  to 
accept  the  subscriber's  promise,  instead  of  money,  for  the  first  in- 
stalment, cannot  defeat  his  right  to  be  regarded  as  a  stockholder, 
on  account  of  his  not  complying  with  a  condition  which  they  have 
expressly  waived.  It  would  seem,  that  under  these  circumstances, 
the  immediate  parties  to  the  contract  could  not  obtain  any  advan- 
tage over  each  other,  by  reason  of  the  waiver,  of  strict  performance 
of  such  condition,  by  mutual  consent.  But  the  objection  must 
come  properly  from  some  other  quarter,  either  the  public,  or  the 
other  shareholders.  And  possibly  the  cases  decided  upon  this  sub- 
ject do  not  justify  any  such  relaxation,  even  between  the  parties  to 
the  immediate  contract  of  subscription.  Upon  general  principles, 
applicable  to  the  subject,  as  educed  from  the  law  of  contracts,  we 
see  no  objection  to  the  waiver  of  such  a  condition  on  behalf  of  the 
company.  And  if  there  be  any  objection  upon  other  grounds,  it  is 
not  for  the  benefit  of  the  subscriber.13 

13  It  has  been  held  that  the  misstatement  of  the  length  of  the  road,  in  the 
articles  of  association,  if  there  be  no  fraud ;  or  the  lease,  or  sale,  of  the  fran- 
chises of  the  corporation  to  another  company,  which  is  void ;  or  the  neglect  to 
make  the  whole  road,  even  without  legislative  sanction,  will  not  exonerate  a  sub- 
scriber from  paying  calls.  Troy  &  Rutland  Railw.  v.  Kerr,  17  Barb.  581.  But 
where  a  preliminary  subscription  is  required,  it  must  be  absolute  and  not  depend- 
ent upon  conditions.  Troy  &  Boston  Railway  v.  Tibbits,  18  Barb.  297.  But  a 
condition  that  provides  for  interest,  by  way  of  dividends,  to  paying  subscribers, 
until  the  full  completion  of  the  road,  at  the  expense  of  subscribers  who  do  not 
pay,  or  one  that  imposes  a  limitation  upon  the  directors  in  calling  in  stock,  is 
void  as  being  against  good  policy.     lb. 

In  a  case  in  Kentucky,  Wight  v.  Selby  Railw.,  16  B.  Monr.  5,  it  was  held, 
that  a  subscription  to  stock,  in  a  railway,  is  not  rendered  invalid  by  reason  of 
the  subscriber's  failure  to  pay  a  small  sum  required  by  the  charter  to  be  paid 
upon  each  share  when  he  subscribed.  Simpson,  J.,  "  It  was  their  duty  to 
pay  it,  at  the  time  the  stock  was  subscribed,  but  they  should  not  be  allowed 
to  take  advantage  of  their  own  wrong,  and  release  themselves  from  their  whole 
obligation,  by  a  failure  to  perforin  part  of  it."     This  seems  to  us  a  sound  view  of 

[*189] 


§  55.  DEFENCES  TO  ACTIONS  FOR  CALLS.  203 

*6.  An  agreement  to  take  stock  and  pay  in  the  stock  of  a  canal 
company,  and  an  offer  of  the  canal  stock,  will  not  make  the  party 
liable  to  pay  money.14 

the  subject,  and  the  only  one  which  is  consistent  with  the  general  principles  of 
the  law  of  contract,  as  applicable  to  the  question. 

In  a  more  recent  case,  S.  subscribed  for  $500  of  stock  in  a  railway  com- 
pany upon  the  understanding  that  the  first  ten  per  cent  required  by  law  to  be 
paid  in  cash  upon  subscribing  should  be  paid  by  his  services  in  securing  subscrip- 
tions and  right  of  way.  He  subsequently  presented  an  account  against  the  com- 
pany for  services,  from  which  it  appeared,  that  at  the  date  of  the  subscription 
the  company  was  indebted  to  him  in  an  amount  greater  than  the  cash  payment 
required,  in  which  account  he  applied  and  credited  $50  for  ten  per  cent  upon  his 
subscription,  and  $50  for  the  first  call  made  thereon.  The  account  was  allowed 
by  the  company,  and  the  balance  paid  by  S.  Held,  that  this  was  a  sufficient 
compliance  with  the  statute  in  respect  to  the  payment  of  the  first  ten  per  cent, 
and  made  the  subscription  obligatory  upon  S.  Beach  v.  Smith.  30  N.  Y.  116. 
See  also  Vicksburg,  Sh.  and  Texas  R.  Co.  v.  McKean,  12  La.  Ann.  638. 

In  this  case  it  is  further  held,  to  be  no  valid  defence  to  a  subscription  to  the 
stock  of  a  railway,  that  it  was  delivered  as  an  escrow  to  one  of  the  commission- 
ers appointed  to  receive  subscriptions.  It  should  have  been  delivered  to  a  third 
person,  to  become  effectual  as  an  escrow.  Such  subscribers  are  presumed  to 
know  the  conditions  of  the  charter  under  which  the  subscription  is  taken,  and 
that  if  they  desire  to  make  their  subscriptions  conditional,  it  must  be  so  expressed 
in  the  written  terms  of  subscription,  and  that  it  is  not  competent  to  deliver  a 
written  contract,  as  an  escrow,  to  the  party  himself.  For,  to  admit  oral  evidence 
of  such  a  condition,  in  the  delivery  of  a  written  contract  to  the  party  benefited 
thereby,  is  a  practical  abandonment  of  the  rule  of  evidence,  that  such  testimony 
is  incompetent  to  control  a  written  contract. 

It  has  been  held,  that  it  is  not  competent  for  the  commissioners  to  accept  the 
check  of  a  subscriber  in  payment  of  the  amount  required  by  the  charter  to  be 
paid  at  the  time  of  subscription,  but  that  specie  or  its  equivalent,  must  be 
demanded.  Crocker  v.  Crane,  21  Wend.  211 ;  s.  c.  2  Am.  Railw.  C.  484;  s.  c. 
1  Redf.  Am.  Railw.  Cases,  42.  But  this  is  at  variance  with  the  general  course  of 
decision,  unless  in  regard  to  banks,  where  the  charter  expressly  requires  the 
payment  to  be  in  specie.     King  v.  Elliott,  5  Sm.  &  M.  428. 

And  where  the  charter  of  a  railway  company  was  made  to  depend  upon  the 
condition  of  the  company  expending  $50,000  in  two  years,  and  completing  the 
road  in  four  years  from  the  date  of  the  grant,  and  the  company  having  failed  in 
the  first  part  of  the  condition,  but  having  obtained  subscriptions  to  their  stock  to 
a  large  amount,  and  the  defendant  being  one  of  the  subscribers,  the  company 
having  organized,  and  chosen  directors,  the  defendant  being  one  of  them,  the 
legislature  revived  and  renewed  the  charter,  and  extended  the  time  for  the 
performance  of  such  condition;  and  subsequently  to  this,  a  meeting  of  the  stock- 
holders was  called  by  the    commissioners,   in  which   the  defendant  took   part, 


14  Swatara  Railw.  v.  Brune,  6  Gill,  41. 

[*190] 


204  ASSESSMENTS   OR   CALLS.  PART  II. 

[nfancy  is  a  good  defence,  if  the  person  l>c  an  infant  at  the 
time  of  suit  brought,  or  if  he  repudiate  the  subscription  within  a 
reasonable  time  after  coming  of  full  age.15  By  the  general  pro- 
visions of  tlic  English  statute,  all  persons  may  become  shareholders, 
there  being  no  exception,  in  terms,  in  favor  of  infants;  and  if  one 
be  registered  while  an  infant,  and  suffer  his  name  to  remain  on  the 
registry  after  he  becomes  of  full  age,  he  is  liable  for  calls,  whether 
made  while  he  was  an  infant,   or  afterwards.10     It  seems  to  be 

additional  directors  being  appointed,  and  at  a  meeting  of  the  directors,  the  defend- 
ant being  present,  a  call  was  made  upon  the  subscriptions,  it  was  held  that  this 
amounted  to  an  acceptance  of  the  renewal  of  the  charter,  and  was  such  a  recog- 
nition of  tlie  former  organization  of  the  company,  as  to  amount  to  a  sufficient 
organization  under  the  new  charter,  and  the  defendant  was  held  to  be  estopped 
by  his  conduct  from  denying  the  regularity  of  these  proceedings,  and  to  be  lia- 
ble to  pay  calls  on  his  stock.  Danbury  &  Norwalk  Railw.  v.  Wilson,  22  Conn- 
435. 

Where  the  general  railway  law,  under  which  a  company  is  organized,  requires 
a  payment  often  per  cent  upon  each  subscription  before  the  filing  of  the  articles 
of  association  with  the  secretary  of  state,  it  is  sufficient,  if  the  cash  payments,  by 
whomsoever  made,  amount  in  the  aggregate  to  ten  per  cent  upon  $1,000  for 
ca<h  mile  of  the  road  proposed  to  be  constructed.  Lake  Ontario,  A.  &  New 
York  Railw.  r.  Mason,  16  N.  Y.  451.  And  the  subscription  to  stock  before  the 
incorporation  of  the  company,  is  obligatory  upon  the  company,  although  the 
subscriber  make  no  cash  payment  whatever,  the  right  of  membership  thereby 
acquired  being  a  sufficient  consideration  for  the  subscription.  lb.  Ante,  § 
51,  n.  1. 

15  North  W.  Railw.  v.  McMichael,  5  Exch.  114;  Birkenhead  Railw.  v.  Pit- 
cher, 5  Exch.  121;  s.  C..6  Railw.  C.  622.  The  party  should  also  deny  having 
derived  any  advantage  from  the  shares,  or  offer  to  restore  them.  N.  W.  Railw. 
v.  McMichael,  5  Exch.  114;  Leeds  &  T.  Railw.  v.  Fearnley,  4  Exch.  26;  Dub- 
lin &  W.  Railw.  v.  Black,  16  Eng.  L.  &  Eq.  556;  s.  c.  8  Exch.  181.  See  also 
Deposit  &  G.  Life  Assur.  Co.  v.  Ayscough,  6  E.  &  B.  761. 

16  Cork  &  Bandon  Railw.  v.  Cazenove,  10  Q.  B.  935.  But  it  would  seem 
that  infants  arc  nut  comprehended,  by  the  general  terms  of  the  English  statute. 
Birkenhead,  &c.  Railway  v.  Pilcher,  supra. 

It  has  been  said  that  an  infant  shareholder,  or  subscriber,  in  a  railway  com- 
pany, is  in  the  same  situation  as  in  regard  to  real  estate,  or  any  other  valuable 
property,  which  he  may  have  purchased  and  received  a  conveyance  of.  If,  upon 
coming  of  age,  he  disclaim  the  contract,  and  restore  the  thing,  with  all  advan- 
tages arising  from  it,  his  liability  is  terminated,  and  he  cannot  be  made  liable  for 
calls.  Parke,  B.,  in  Birkenhead  &  C.  Railw.  v.  Pilcher,  6  Railw.  C.  625.  The 
infant  is  not  regarded  as  merely  assuming  an  executory  undertaking,  which  is 
void  on  the  face  of  it,  but  in  the  nature  of  a  purchaser  of  what  is  presumed  to  be 
valuable  to  him. 

W  then  fore,  there  is  nothing  but  the  simple  fact  of  infancy  pleaded  to  an 

[*191J 


§  55.  DEFENCES  TO  ACTIONS  FOR  CALLS.  205 

*  doubted  by  the  English  courts  whether  the  statute  of  limitations 
as  to  simple  contracts  applies  to  an  action  for  calls,  that  being  a 
liability  imposed  by  statute,  and  so  to  be  regarded  as  a  specialty.17 

8.  Bankruptcy  is  a  good  defence  for  calls  made  after  the  cer- 
tificate of  bankruptcy  issues,  but  to  meet  liabilities  incurred 
before.18 

9.  One  of  the  commissioners  appointed  with  five  others  at  a 
given  place  to  take  subscriptions  to  a  railway,  has  no  right  in  doing 
so  to  give  any  assurance  as  to  the  line  of  location  that  would  be 
adopted  by  the  company.19 

10.  And  where  the  subscription  is  made  upon  condition  of  the 
road  going  in  a  particular  route,  the  plaintiff  may  show  that  the 

action  for  calls,  it  is  insufficient.  lb.  It  would  seem  that  the  plea  should  contain 
averments,  showing  the  disadvantageous  nature  of  the  contract  to  the  infant,  his 
repudiation  of  the  contract,  and  restitution  of  all  benefits  derived  under  it, 
on  coming  of  full  age,  or  that  he  is  still  an  infant,  and  is  ready  to  do  so,  upon 
coming  of  full  age.  McMichael  v.  London  &  N.  Railw.,  5  Exch.  855 ;  s.  c.  6 
Railw.  C.  618 ;  Birkenhead  &  C.  Railw.  v.  Pilcher,  5  Exch.  121 ;  s.  c.  6  Railw. 
C.  564,  662.  The  mere  plea  of  infancy  is  an  immaterial  plea,  and  issue  being 
joined  thereon,  and  found  for  defendant,  the  plaintiff  is  still  entitled  to  judg- 
ment veredicto  non  obstante.     lb. 

The  plea  must  show  that  the  infant  avoids  the  contract  of  subscription,  on  his 
coming  of  full  age.  Leeds  and  Thirsk  Railw.  v.  Fearnley,  5  Railw.  C.  614; 
S.  C.  4  Exch.  26.  And  the  appearance  by  attorney  is  not  equivalent  to  an  aver- 
ment that  the  defendant  is  of  full  age.     lb. 

But  where  the  plea  alleged,  that  the  defendant  became  the  holder  of  shares, 
by  reason  of  his  having  contracted  and  subscribed  for  them,  and  not  otherwise ; 
and  that  at  the  time  of  his  so  contracting  or  subscribing,  and  also  at  the  time  of 
making  the  calls,  he  was  an  infant ;  and  that  while  he  was  an  infant  he  repudi- 
ated the  contract  and  subscription,  and  gave  notice  to  the  plaintiffs  that  he 
held  the  shares  at  their  disposal;  it  was  held  a  good  prima  facie  bar;  and  that  if 
the  defendant,  after  he  came  of  full  age,  disaffirmed  his  repudiation,  or  if  he 
become  liable,  by  enjoyment  of  the  profits,  those  facts  should  be  replied.  Newry 
&  Enniskillen  Railw.  v.  Coombe,  3  Exch.  565  ;  s.  c.  5  Railw.  C.  633. 

Where  shares  were  sold  to  an  infant,  and  were  duly  transferred  to  him,  on 
the  declaration  of  the  vendor  that  he  was  of  full  age,  and  the  father  of  such  infant, 
by  a  deed  reciting  that  he  had  purchased  on  behalf  of  the  son,  and  covenanting 
that  he,  on  coining  of  age,  would  execute  the  deed,  and  pay  all  calls,  and  that 
the  father  would  indemnify  the  company  against  all  costs,  by  reason  of  the  son 
being  an  infant,  it  was  held  that  the  father  was  a  contributory.  Ex  parte  Reav- 
eley,  1  De  G  &  S.  550.  See  also  Stikeman  v.  Dawson,  4  Railw.  C.  585 ;  s.  c.  1 
De  G.  &  S.  90. 

17  Cork  &  B.  Railw.  v.  Goode,  13  C.  B.  618;  s.  c.  24  Eng.  L.  &  Eq.  245. 

18  Chappie's  Case,  17  Eng.  L.  &  Eq.  516 ;  s.  c.  5  De  G.  &  S.  400. 

19  North  Carolina  Railw.  v.  Leach,  4  Jones  Law,  340. 

[*192] 


206 


ASSESSMENTS    OR    CALLS. 


PART  II. 


defendant  owned  land  upon  that  route.  And  any  representations 
of  the  agents  taking  the  subscriptions,  as  to  the  ultimate  value  of 
the  stock,  will  l»e  regarded  as  matters  of  opinion  merely  upon 
which  the  subscriber  had  no  right  to  rely.20 


^SECTION      X. 


Fundamental  alteration  of  Charter. 


1 .    Will   <  •  as<  the  subscribers  to  stock. 

•_'  /,'  'I way  company  cannot  purchase  sleam- 
boais. 

'■),  7.  Majority  may  bind  company  to  altera- 
tions, not  fundamental. 

4.  Directors  cannot  use  the  funds  for  purposes 

ganization. 

5.  9.  But  whert  the  legislature  or  the  directors 

mah  l<  <!'il  alterations  in  the  charter,  or 
the  location  of  the  road,  it  will  not  re- 
l  as,  subscribers. 

6.  Bui  if  subscriptions  are  made  upon  con- 

dition of  a  particular  location,  it.  must 
be  complied  with 


8,  9.  Consideration  of  subscription,  being 
location  of  road,  must  be  substantially 
perform'  d. 

10.  Express  conditions  must  be  performed. 

11.  How  far  alterations  may  be  made  without 

releasing  subscribers. 

12.  //  may  be  done  where  such  power  is  re- 
served in  the  charter. 

13.  Personal  representative  liable  to  same  ex- 

tent as  subscriber. 

14.  Money  subscriptions  not  released  by  sub- 

sequent ones  in  land. 

15.  Corporation  cannot  emigrate  into  another 

state  even  by  legislative  permission. 


§  5G.  1.  There  can  be  no  doubt,  that  subscribers  to  the  stock 
of  a  railway  company  are  released  from  their  obligation  to  pay  calls 
by  a  fundamental  alteration  of  the  charter.  This  is  so  undeniable, 
and  so  familiar  a  principle,  in  the  general  law  of  partnership,  as 
not  to  require  confirmation  here.  We  shall  briefly  advert  to  the 
points  decided  in  some  of  the  more  prominent  cases,  in  regard  to 
incorporated  companies.  The  general  doctrine  applicable  to  the 
subject  is  very  perspicuously  stated  by  Woodbury,  J.,  in  an  early 
case  in  New  Hampshire.1  "  Every  owner  of  shares  expects,  and 
stipulates,  with  the  other  owners,  as  a  corporate  body,  to  pay  them 
his  proportion  of  the  expenses,  which  a  majority  may  please  to 
incur,  in  the  prosecution  of  the  particular  objects  of  the  corporation. 
To  make  a  valid  change  in  this  special  contract,  as  in  any  other, 
the  consent  of  both  parties  is  indispensable." 

20  Vawter  v.  <  >hio  &  Miss.  R.  Co.,  14  Ind.  174. 

1  Union  ! ks  &  (anal  Co.  v.  Towne,  1  N.  Hamp.  44.  But  where  the  origi- 
nal charter  or  preliminary  contract  provides  for  modifications,  the  subscribers 
are  still  bound  by  all  such  as  come  fairly  within  the  power.  Cork  &  Youghal 
Railway  v.  Patterson,  18  C.  B.  414;  s.  c.  37  Eng.  L.  &  Eq.  398 ;  post,  §  254, 
n.  6 ;  Nixon  v.  Brownlow,  30  Law  Times,  74;  s.  c.  3  H.  &  1ST.  686. 

[*193] 


§  56.  FUNDAMENTAL    ALTERATION   OP   CHARTER.  207 

2.  Iii  an  important  case  2  where  it  appeared  that  after  calls  fell 
*  due,  but  before  suit  brought,  the  company,  being  incorporated  for 
the  purpose  of  building  a  railway,  procured  an  additional  special 
act,  by  which  they  were  authorized  to  purchase  steamboats :  it  was 
held,  that  a  subscriber,  not  having  assented  to  the  alteration,  was 
absolved  from  his  obligation  to  pay  calls. 

3.  In  a  very  elaborate  opinion  of  Bennett,  Chancellor,3  upon  this 
subject,  the  following  propositions  are  established :  — 

2  Hartford  &  New  Haven  Railw.  v.  Croswell,  5  Hill,  383.  In  Winter  v. 
Muscogee  Railw.,  11  Ga.  438,  the  charter  was  so  altered  as  to  allow  the  road  to 
stop  short  of  its  original  terminus  and  pass  in  a  different  route,  and  subscribers 
to  the  stock  were  held  thereby  released,  unless  they  assented  to  the  alteration. 
But  where  one  gave  his  note  for  the  first  instalment,  and  his  stock  was  forfeited, 
for  non-payment  of  calls,  he  is  not  relieved  from  payment  of  his  note  by  a  mate- 
rial alteration  of  the  charter.  Mitchell  v.  Rome  Railw.,  17  Ga.  574.  But  any 
modification  of  the  charter  which  affects  merely  the  detail  of  proceedings  in 
making  and  enforcing  calls  will  not  release  subscribers  to  the  stock,  when  such 
modification  has  been  accepted  by  the  corporation.  Illinois  River  Railw.  Co.  v. 
Beers.  27  Illinois,  185. 

3  Stevens  v.  Rutland  &  Burlington  Railw.,  29  Vt.  545.  The  opinion  at  length 
is  a  valuable  commentary  upon  this  important  subject.  In  this  opinion  the  learned 
chancellor  maintains,  — 

1.  That  by  the  implied  contract,  among  the  proprietors  of  all  joint-stock 
undertakings,  there  is  a  tacit  inhibition  against  applying  the  funds,  for  any  pur- 
pose beside  the  general  scope  of  the  original  enterprise,  and  that  this  applies  to 
corporations  equally  with  commercial  partnerships.  Natusch  v.  Irving,  Gow  on 
Part.  App.  5G7.  And  that  courts  of  equity  will  restrain  a  corporation  from  thus 
misapplying  its  funds  by  injunction.  Ware  v.  Grand  Junction  Water  Co.,  2 
Russell  &  Mylne,  461.  And  that  this  will  be  done  upon  the  application  of  those 
shareholders  who  dissent.  And  in  some  instances  will  restrain  the  company 
from  applying  to  the  legislature  for  an  enlargement  of  their  powers.  Cunliff  v. 
Manchester  &  Bolton  Canal  Co.,  13  Eng.  Cond.  Ch.  131;  8.  c.  2  Russell  & 
My.  470,  475 ;  Livingston  v.  Lynch,  4  Johns.  Ch.  573. 

2.  That  if  the  proposed  alteration  is  only  auxiliary  to  the  main  design  of  the 
original  organization,  it  will  not  be  enjoined ;  but  if  it  be  fundamental,  it  will 
be.  That  a  variation  in  the  course  of  a  turnpike  road  has  been  regarded  as  a 
fundamental  alteration  in  the  charter,  Middlesex  Turnpike  Co.  v.  Lock,  8  Mass. 

268,  and,  as  such,  to  exonerate  subscribers  to  the  stock  of  the  original  company. 
[But  Irvine  v.  The  Turnpike  Co.,  2  Penn.  46G,  holds  it  will  not  have  that  effect.] 
And  that  in  such  cases  it  will  make  no  difference,  that  the  subscriber  was  a  di- 
rector in  the  company,  and  joined  in  the  petition  to  the  legislature  for  the  altera- 
tion.    Same  v.  Swan,  10  Mass.  384;  Same  v.  Walker,  10  Mass.  390. 

The  learned  chancellor  regarded  the  case  of  Revere  v.  The  Boston  Copper  Co., 
which  was  cited  by  the  counsel  for  the  defendants,  as  making  rather  against  his 
purpose.     15  Pick.  351,  363.     The  case  of  Hartford  &  New  Haven  Railw.  v. 
Croswell,  5  Hill,  383,  385,  is  relied  upon,  as  having  defined  a  fundamental  alter- 
am] 


208  ASSESSMENTS  OR  CALLS.  PART  II. 

*1.  That  a  majority  of  a  joint-stock  company  cannot  use  the 
oinl  property  except  within  the  legitimate  scope  of  their  charter, 
*  and  if  they  attempt  to  do  so  equity  will  restrain  them.  2.  The 
shareholders  are  hound  by  such  modifications  of  the  charter  as  are 
not  fundamental,  but  merely  auxiliary  to  the  main  design.  3.  If 
a  majority  of  a  railway  company  obtain  an  alteration  of  their  char- 

ation  of  the  charter  of  a  corporation,  in  the  language  of  C.  J.  Nelson,  to  be 
one  "  by  which  a  new  and  different  business  is  superadded  to  that  originally 
contemplated." 

S.  No  one  can  be  made  a  member  of  a  joint-stock  corporation  without  his 
consent.  Ellis  v.  Marshall,  2  Mass.  269.  Nor  can  he  be  compelled  to  remain  a 
member  of  such  company  after  its  fundamental  organization  is  altered  by  act  of 
the  legislature.  But  an  act  of  the  legislature  allowing  a  navigation  company  to 
raise  their  dam  above  the  point  of  the  original  charter  limit,  is  in  furtherance  of 
the  original  grain,  and  will  not  exonerate  the  subscribers.  Gray  v.  Monongahela 
Navigation  Co.,  2  Watts  &  Serg.  156.  And  an  alteration  in  the  number  of 
votes,  to  be  cast  by  stockholders,  if  it  impair  the  obligation  of  the  contract 
resulting  from  the  grant,  is  void,  and  so  cannot  release  the  subscribers.  Osborn 
v.  Bank  of  United  States,  9  Wheat.  788.  But  any  statute  which  has  the  force  to 
effect  an  alt.  ration  in  the  structure  of  the  corporation,  will  release  subscribers. 
Indiana  &  Ebensburg  Tump.  Co.  v.  Phillips,  2  Penn.  184. 

[.  That  statutes  extending  the  term  of  a  corporation,  for  closing  up  its  busi- 
ness, on  petition  of  the  directors,  have  no  proper  bearing  upon  the  question. 
Lincoln  &  K.  Bank  v.  Richardson,  1  Greenl.  79;  Foster  v.  The  Essex  Bank,  16 
Mass.  2  15. 

5.  That  it  is  no  fatal  objection  to  the  application  that  it  is  made  at  the  insti- 
gation of  a  rival  enterprise.  Colman  v.  Eastern  Counties  Railw.,  10  Beav.  1. 
[But  sec  ante,  §  20.] 

6.  That  an  existing  railway  company  will  be  restrained  in  equity  from  apply- 
ing its  present  funds  to  extend  their  line,  or  improve  the  navigation  of  a  river 
connected  with  their  line,  or  for  obtaining  an  act  of  the  legislature,  authorizing 
them  to  do  so.  Munt  v.  Shrewsbury  &  Chester  Railw.,  13  Beav.  1 ;  8.  c.  3  Eng. 
L.  &  Eq.  Ill;  Colman  v.  Eastern  Co.'s  Railw.,  10  Beav.  1. 

7.  That  members  of  an  existing  company  cannot  be  compelled  to  surrender 
their  interest  to  the  company,  or  to  others,  and  retire,  in  order  to  enable  them 
to  change  the  character  of  the  enterprise.  Lord  Eldon,  Chancellor,  in  Natusch 
r.  [rving,  s/i/na. 

8.  In  favor  of  the  importance  and  necessity  of  having  this  constant  supervision 
exercised  over  joint-stock  companies,  in  order  to  keep  them  within  the  range  of 
their  legitimate  functions,  the  learned  chancellor  thus  concludes:  — 

"  U  here  it  is  clearly  shown  that  a  corporation  is  about  to  exceed  its  powers, 
and  to  apply  their  funds  or  credit  to  some  object  beyond  their  authority,  it  would, 
if  the  purpose  of  the  corporation  was  carried  out,  constitute  a  breach  of  trust;  a 
court  of  equity  cannot  refuse  to  give  relief  by  injunction.  Agar  v.  The  Regent's 
(anil  Co.,  Cooper's  Eq.  77;  The  River  Dun  Navigation  Co.  v.  North  Midland 
Railw.  Co.,  1  Railw.  C.  lo:j,  15-4;  post,  §  211. 
[*195,  196] 


§  56.  FUNDAMENTAL   ALTERATION    OP    CHARTER.  209 

ter,  which  is  fundamental,  as  to  enable  them  to  build  an  extension 
of  their  road,  any  shareholder  who  has  not  assented  to  the  act, 
may  restrain  the  company,  by  injunction,  from  applying  the  funds 
of  the  original  organization  to  the  extension. 

4.  In  a  case  before  the  Master  of  the  Rolls,4  it  was  held  *that 
directors  have  no  right  to  enter  into  or  to  pledge  the  funds  of  the 
company  in  support  of  any  project  not  pointed  out  by  their  act, 
although  such  project  may  tend  to  increase  the  traffic  upon  the 
railway,  and  may  be  assented  to  by  the  majority  of  the  shareholders, 
and  the  object  of  such  project  may  not  be  against  public  policy. 
And  that  acquiescence  by  shareholders  in  a  project  for  ever  so  long 
time,  affords  no  presumption  of  its  legality.  And  in  a  case  in 
this  country  it  is  held,  that  the  subscriber  having  acted  as  director 
of  the  corporation,  and  as  such  having  participated  in  the  proceed- 
ings to  effect  the  alteration,  will  not  make  him  liable  for  calls,  upon 
his  original  subscription.5 

5.  But  it  is  no  defence  to  an  action  for  calls,  that  the  directors 
have  altered  the  location  of  the  road,  if  by  the  charter  they  had  the 
discretion  to  do  so.6  And  if  the  charter  contain  a  provision  that 
the  legislature  may  alter  or  amend  the  same,  the  exercise  of  this 
power  will  not  absolve  the  shareholders  from  their  liability  to  pay 

4  Colman  v.  Eastern  Counties  Railw.,  10  Beav.  1;  s.  c.  4  Railw.  C.  513. 
See  also  Munt  v.  Shrewsbury  &  Chester  Railw.,  13  Beav.  1 ;  s.  c.  3  Eng.  L.  & 
Eq.  144;  East  Anglian  Railw.  v.  Eastern  Counties  Railw.,  11  C.  B.  775;  s.  c. 
7  Eng.  L.  &  Eq.  505 ;  MacGregor  v.  Deal  &  Dover  Railw.,  18  Q.  B.  618 ;  s.  c. 
16  Eng.  L.  &  Eq.  180 ;  Danbury  &  Norwalk  Railw.  v.  Wilson,  22  Conn.  435 ; 
Mill-Dam  Co.  v.  Dane,  30  Maine,  347  ;  post,  §  232  ;  Winter  v.  Muscogee  Railw., 
11  Ga.  438;  Hamilton  Plank  Road  v.  Rice,  7  Barb.  157;  Commonwealth  v. 
Cullen,  1  Harris,  133  ;  3  Woodbury  &  Minot,  105.  But  the  House  of  Lords  held 
in  Taylor  v.  C.  &  M.  Railw.,  L.  R.  4  Ho.  Lds.  628,  where  an  existing  railway 
was  empowered  by  act  of  parliament  to  enter  on  a  new  undertaking  and  to  add 
the  new  undertaking  to  the  old,  and  to  treat  the  capital  intended  to  be  raised  for 
the  new  undertaking  as  capital  added  to  the  old,  that  the  company  is  thereby 
authorized  (should  it  be  unable  successfully  to  raise  the  new  capital,  which  is  a 
matter  not  to  be  assumed)  to  apply  to  the  new  undertaking  funds  previously 
applicable  to  the  old  ;   sed  quaere  ? 

5  Macedon  Plank  Road  Co.  v.  Lapham,  18  Barb.  312.  But  see  Greenville  & 
Columbia  Railw.  v.  Coleman,  5  Rich.  118. 

6  Colvin  v.  The  Turnpike  Co.,  2  Carter,  511 ;  id.  656. 

Nor  is  it  a  defence  to  an  action  for  calls,  that  the  name  of  the  company,  or  the 
length  and  termini  of  the  road,  have  been  materially  altered.  Del.  &  Atlantic 
Railw.  v.  Lick,  3  Zab.  321. 

vol.  i.  14  [*197J 


210  ASSESSMENTS    OR   CALLS.  PART  II. 

calls."  Ami  all  subscriptions  to  stocks,  and  all  contracts  for  the 
*  purchase  of  stock,  to  be  delivered  at  a  future  day,  must  be  under- 
stood to  be  made  subject  to  the  exercise  of  all  the  legal  powers  of 
the  directors  and  of  the  legislature,  and  an  illegal  exercise  of  power 
by  either  will,  it  has  sometimes  been  said,  bind  no  one,  and  should 
exonerate  no  one  from  his  just  obligations.8 

6.  But  where  subscriptions  are  made  upon  the  express  con- 
dition that  the  road  shall  go  in  a  particular  place,  the  perform- 
ance of  such  condition  is  commonly  regarded  as  indispensable 
to  the  liability  of  the  subscribers,  the  same  as  in  other  contracts.9 

7  Northern  Railw.  v.  Miller,  10  Barb.  260;  Pacific  Railw.  v.  Renshaw,  18 
Missouri,  210.  And* where  a  subscription  is  made  to  the  capital  stock  of  a  rail- 
way, while  an  act  of  the  legislature  exists,  allowing  the  consolidation  of  such  com- 
pany with  another,  the  fact  that  such  consolidation  is  subsequently  made  affords 
no  ground  for  avoiding  the  subscription.  Bish  v.  Johnson,  21  Ind.  29[).  And 
if,  from  the  articles  of  association  of  the  company,  it  is  obvious  that  consolida- 
tion with  another  company  was  one  of  the  leading  purposes  of  the  incorporation, 
the  fact  of  such  consolidation,  after  the  date  of  a  subscription,  will  be  no  defence 
against  its  enforcement,  even  when  the  statute  authorizing  the  consolidation  is 
subsequent  to  the  date  of  the  subscription.  Hanna  v.  Cin.  &  F.  W.  Railw.,  20 
Ind.  30.  The  consolidation  of  two  corporations  does  not  effect  the  dissolution 
of  either,  so  as  to  work  the  abatement  of  pending  actions.  Baltimore  &  Susq. 
Railw.  v.  Musselman,  2  Grant  Cas.  348.  But  see  McMahan  v.  Morrison,  16  Ind. 
172,  contra.  For  many  purposes  the  liabilities  of  the  original  companies  remain, 
as  before  the  consolidation.  Central  Railw.  Co.  v.  Bunn,  3  Stockt.  Ch.  336.  It 
is  here  decided,  that  where  the  original  company  and  a  new  company  formed  by 
the  mortgagees  after  sale  of  the  road  bear  the  same  name  and  have  the  same 
president,  a  suit  to  enforce  a  claim  contracted  before  the  sale,  served  upon  the 
president,  cannot  go  to  judgment  against  the  new  company,  nor  will  a  court  of 
equity  allow  a  general  judgment,  at  law,  to  be  taken.  The  plaintiff  must  elect 
to  take  judgment,  in  terms,  against  the  original  company.  This  seems  to  be  a 
very  judicious  course,  but  one  for  which  courts  of  equity  will  afford  no  precedent. 
The  order  should  have  been  made,  most  obviously,  in  the  court  of  law. 

8  Irvin  v.  Turnpike  Co.,  2  Penn.  466  ;  Conn.  &  Pas.  Rivers  Railw.  v.  Bailey, 
24  Vt.  479;    Faulkner  v.  Ilebard,  26  Vt.  452 ;    s.  c.  2  Redf.  Am.  Railw.  Cases, 

Fry's  Exr.  v.  Lex.  &  Big  S.  Railw.,  2  Met.  (Ivy.)  314. 
;'  See  cases  under  notes  2  &  3,  supra;  and  also  Railsback  v.  Liberty  & 
Abington  Turnp.  Co.,  2  Carter  (Ind.),  656.  And  in  Kenosha,  Rockford,  and 
Rock  Island  R.  Co.  v.  Marsh,  17  Wis.  13,  it  was  held,  that  where  the  legisla- 
ture had  the  general  power  to  repeal  or  alter  acts  of  incorporation,  and  accord- 
ingly allowed  an  existing  company,  chartered  to  carry  a  railway  over  a  given 
line,  and  whose  subscriptions  had  been  taken  with  that  view,  to  change  their 
route  very  essentially ,  the  subscribers  were  thereby  released  from  their  obliga- 
tion to  pay  calls. 

[*198] 


§  56.  FUNDAMENTAL   ALTERATION    OP   CHARTER.  211 

But  an  alteration  in  the  line  of  the  road,  which  does  not  affect 
the  interest  of  the  subscriber,  will  not  absolve  him  from  his  sub- 
scription.10 And  when  the  subscription  was  made  upon  condition 
that  the  road  be  located  upon  a  given  line,  and  providing  that  such 
location  should  be  sufficiently  evinced  by  an  order  of  the  board  of 
directors  accepting  such  subscription  upon  the  condition  named,  it 
was  held  sufficient  to  bind  the  subscriber,  that  the  road  had  been 
in  fact  located  and  built  upon  the  line  designated,  and  that  this 
was  known  to  him,  although  there  had  been  no  formal  action  of 
the  board  accepting  the  subscription.11 

7.  And  an  alteration  in  the  charter,  which  consists  only  of  an 
increase  of  the  corporate  powers,  or  of  a  different  organization  of 
the  corporate  body,  leaving  it  with  lawful  power  to  execute,  what 
*  may  be  regarded  as  substantially  the  original  object  of  its  crea- 
tion, will  not  exonerate  subscribers  to  the  stock  of  the  company.12 
So  too  where  the  general  laws  of  the  state  provide  that  all  acts 
of  incorporation  may  be  altered,  amended,  or  repealed  by  the 
legislature,  it  is  no  defence  to  a  subscription  for  stock,  that 
subsequently  the  legislature  increased  the  liability  of  the  stock- 
holders.13 

8.  And  notwithstanding  much  apparent  conflict  in  the  cases 
upon  this  subject,  it  will  be  found  to  be  the  general  result  of  the 
best  considered  cases,  that  the  alteration,  either  in  the  charter  of 

10  Banet  v.  Alton  &  Sangamon  Railw.,  13  111.  504;  Danbury  &  Norwalk 
Railw.  v.  Wilson,  22  Conn.  435. 

11  Moore  v.  New  Albany  &  Salem  Railw.  Co.,  15  Ind.  78;  Warner  v.  Callen- 
der,  20  Ohio  (N.S.),  190. 

12  Pacific  Railw.  v.  Hughs,  22  Missouri,  291 ;  Peoria  &  Oquawka  Railw.  v. 
Elting,  17  111.  429.  In  Everhart  v.  West  Chester  and  Philadelphia  Railw., 
28  Penn.  St.  339,  the  subscribers  for  stock  were  held  not  released  by  such  a 
change  in  the  charter  of  the  company  as  empowered  them  to  issue  preferred  stock, 
to  enable  them  to  raise  the  means  of  making  and  equipping  the  road  in  the  man- 
ner originally  contemplated.  It  was  considered  that  such  an  amendment  of  the 
charter  was  merely  ancillary  to  the  main  design,  and  might  be  accepted  by  a 
majority  of  the  stockholders  and  thus  become  binding  upon  all ;  that  it  is  im- 
plied in  every  subscription  for  the  stock  in  a  railway  company,  that  they  may 
resort  to  the  ordinary  and  legal  means  for  accomplishing  the  object  proposed  by 
the  charter.  It  is  here  said,  that  an  alteration  of  the  charter,  which  superadds  an 
entirely  new  enterprise,  will  release  subscriptions  to  the  stock.  See  also  Fry's 
Exr.  v.  Lex.  &  Big  S.  Railw.,  2  Met.  (Ky.)  314. 

13  South  Bay  Meadow  Dam  Co.  v.  Gray,  30  Maine,  547 ;  Buffalo  &  New  Y. 
City  Railw.  v.  Dudley,  14  N.  Y.  336.     But  see  ante,  n.  9. 

[*199] 


212  ASSESSMENTS   OR   CALLS.  PART  II. 

Ilir  company,  or  the  line  of  the  road,  to  exonerate  the  subscriber 
for  Btock,  must  be  one  which  removes  the  prevailing  motive  for 
the  subscription,  or  else  materially  and  fundamentally  alters  the 
responsibilities  and  duties  of  the  company,  and  in  a  manner  not 
provided  for,  or  contemplated,  either  in  the  charter  itself  or  the 
general  laws  of  the  state.14 

*  9.  Where  a  town  or  city  stipulate  with  a  railway  company  for 
adequate  consideration  to  terminate  their  route,  at  a  point  bene- 
ficial to  such  town  or  city,  this  will  not  preclude  the  company  from 
forming  connections  with  other  routes,  by  land  or  water,  at  the 
same  point.15 

10.  And  where  the  plaintiff  made  it  a  condition  of  his  subscrip- 
tion to  the  capital  stock  of  a  railway,  that  it  should  pass  through 
some  portion  of  the  counties  of  Monroe  and  Ontario,  and  the  road 

14  But  in  tbe  Greenville  &  Columbia  Railvv.  v.  Coleman,  5  Rich.  118,  where 
the  charter  gave  the  stockholders  the  right  to  designate  the  route  they  preferred, 
and  if  any  stockholder  was  dissatisfied  with  the  route  selected,  the  right  to  with- 
draw his  subscription,  "provided,  at  the  time  of  subscribing,  he  designated  the 
route  he  desires  to  be  selected,"  and  one  subscribed  without  designating  the 
route  he  preferred,  under  an  assurance  from  one,  who  was  soliciting  subscrip- 
tions, that  he  might  pay  $5  on  $100,  and  be  free  from  liability  as  to  the  residue, 
it  was  held,  that  he  was  liable,  as  a  stockholder,  without  the  right  to  withdraw. 
But  some  of  the  American  cases  do  not  seem  to  recognize  any  alteration  in  the 
route  of  the  road,  even  one  which  renders  it  practically  a  different  enterprise,  as 
a  defence  to  subscriptions  for  stock.  Central  Plank  Road  Co.  v.  Clemens,  16 
Mo.  359.  But  in  Champion  v.  Memphis  &  Charleston  R.  Co.,  35  Miss.  692,  it 
was  decided,  that  when  the  route  on  which  a  railroad  is  to  be  located/  is  pre- 
scribed by  its  charter,  a  subsequent  material  deviation  from  the  route  therein 
prescribed  will  release  the  stockholders  who  had  previously  subscribed,  and  who 
did  not  consent  to  the  deviation. 

It  is  not  every  deviation  in  the  location  of  a  railroad  from  the  route  prescribed 
in  the  charter  which  will  release  non-assenting  stockholders,  and  it  is  impracti- 
cable to  lav  down  any  general  rule  to  serve  as  a  guide  in  determining  the  ques- 
tion of  the  materiality  of  the  deviation.  Each  case  must  be  determined  by  its 
own  particular  circumstances;  and  hence,  where  a  stockholder  resists  the  collec- 
tion of  his  subscription  for  stock,  upon  the  ground  of  a  deviation  from  the  route 
prescribed  by  the  charter,  he  ought  to  set  out  in  his  plea  such  deviation  clearly 
and  distinctly,  so  that  its  materiality  can  be  determined.  A  plea  by  a  stock- 
holder in  a  railway  company,  setting  up  a  deviation  from  the  route  prescribed  by 
the  charter  as  a  defence  to  a  suit,  to  enforce  his  subscription  for  stock,  which 
describes  the  deviation  as  follows  :  "  That  said  road  was  not  constructed  in  accord- 
ance witli  the  requirements  of  the  charter,"  is  bad  for  uncertainty. 

16  Baltimore  &  Ohio  llailw.  r.  Wheeling,  13  Grattan,  40. 
[*200] 


§  56.  FUNDAMENTAL   ALTERATION   OP   CHARTER.  213 

was  so  located  as  not  to  touch  either  of  those  counties,  it  was  held, 
that  he  was  released  from  his  subscription.16 

16  Buffalo,  Corning  &  N.  Y.  Railw.  v.  Pottle,  23  Barb.  21.  And  where  a 
party,  who  was  not  a  stockholder,  executed  a  promissory  note  to  a  railway  com- 
pany, promising  to  pay  them  $200,  in  consideration  that  they  would  locate  their 
depot  in  block  91,  in  Indianapolis,  to  be  paid  when  the  company  should  com- 
mence the  construction  of  their  depot,  and  the  line  of  the  company's  road  ex- 
tended from  Terre  Haute,  through  Indianapolis,  to  Richmond,  a  distance  of 
150  miles,  at  the  date  of  the  note,  but  by  subsequent  act  of  the  legislature,  was 
divided,  at  Indianapolis,  and  the  portion  between  Indianapolis  and  Richmond, 
being  about  one-half,  was  given  to  another  company,  which  built  their  depot  in 
another  portion  of  Indianapolis,  the  former  company  only  constructing  a  freight 
depot,  on  block  94,  it  was  Held,  that  by  the  alteration  of  the  charter  of  the 
Terre  Haute  and  Richmond  Railway  Company,  and  the  acceptance  thereof  by 
the  company,  the  company  became  substantially  a  different  corporation,  and  were 
unable  to  perforin  the  condition  upon  which  the  note  was  to  become  payable,  and 
that  the  circumstance,  that  the  depot  located  on  block  94  was  of  some  advantage 
to  the  plaintiff  in  error,  was  of  no  importance. 

But  an  amalgamation  of  two  railway  companies,  effected  subsequent  to  the 
date  of  a  subscription  to  the  stock  of  one  of  them,  but  which  had  been  authorized 
by  an  act  of  the  legislature  prior  to  that  time,  will  not  release  the  subscription. 
And  it  is  of  no  importance,  that  the  consolidation  took  place  without  the 
knowledge  of  the  subscriber.  Sparrow  v.  Evansville  &  Crawfordsville  Railway, 
7  Porter  (Ind.),  369. 

The  subscription  of  stock  to  an  amalgamated  company  is  a  sufficient  consent 
to  the  amalgamation.  And  such  consent  by  the  stockholders  seems  to  be  re- 
garded as  requisite  to  the  power  of  the  legislature  to  amalgamate  existing  rail- 
way companies.  Fisher  v.  Evansville  &  Crawfordsville  Railway,  7  Porter  (Ind.), 
407.  Where  one  of  the  stockholders  of  a  railway  company  agreed  with  the  com- 
pany to  subscribe  and  take  a  given  number  of  shares  in  the  capital  stock,  if  the 
company  would  adopt  a  particular  route,  there  being  two  under  consideration, 
and  the  company  in  consequence  adopted  that  route,  it  was  held  that  the  party 
was  bound  by  his  contract  to  take  and  pay  for  the  number  of  shares  he  had  thus 
agreed  to  subscribe.  Spartanburgh  &  Union  Railw.  v.  De  Graffenreid,  12  Rich. 
675.  But  where  in  such  a  case,  by  a  subsequent  amendment  of  the  charter,  the 
route  in  consideration  of  which  the  subscription  was  made  was  abandoned,  and 
another  adopted,  the  subscriptions  were  held  to  be  thereby  avoided.  Hester  v. 
Memphis  &  Charleston  Railw.,  32  Miss.  378.  But  one  who  makes  an  absolute 
subscription  to  a  railway,  cannot  avoid  it  by  proving  a  parol  condition  upon 
which  it  was  made,  not  complied  with,  unless  he  show  that  fraud  also  existed  in 
the  contract.  North  Carolina  Railw.  v.  Leach,  4  Jones  Law,  310.  This  case  is 
referred  to  ante,  §  55,  pi.  9,  and  one  important  point  of  the  decision  there  given. 
It  was  also  here  held  that  if  the  party  have  any  remedy  in  such  case  by  mandamus 
or  injunction,  where  the  directors  locate  the  road  differently  liom  the  require- 
ments of  the  charter,  and  omit  to  report  to  it  at  once,  he  is  bound  by  such  acqui- 
escence. 

[*200] 


214  ASSESSMENTS   OR    CALLS.  PART  II. 

*  11.  Where  the  articles  of  incorporation  of  a  railway  company 
restrict  calls  upon  subscriptions  to  twenty  per  cent  in  one  year, 
and  ten  per  cent  at  one  time,  and  also  provide  that  said  articles 
may  at  any  time  be  changed  by  the  unanimous  consent  of  the 
board  of  directors,  it  is  competent  for  the  board  to  so  change  the 
mode  of  making  calls,  as  to  require  them  to  be  made  not  exceed- 
ing five  per  cent  a  month,  and  such  change  in  the  articles  as  to 
the  mode  of  making  calls  will  be  binding  upon  previous  subscrip- 
tions.17 

12.  And  in  a  somewhat  recent  case18  it  was  held,  where  the 
Legislature  had  reserved,  in  the  charter  of  a  corporation,  the  power 
to  modify  or  repeal  the  same,  that  members  of  the  corporation  hold 
their  shares  subject  to  such  liability  as  may  attach  in  consequence 
*  of  the  extension  or  renewal  of  the  charter,  although  obtained  with- 
out their  consent. 

13.  And  it  was  also  here  considered,  that  the  estate  of  an  in- 
testate shareholder  succeeded  to  the  personal  responsibility  of  the 
deceased  in  the  corporation,  and  this  will  render  the  administrator 
liable  for  the  debts  of  the  corporation  contracted  after  the  decease 
of  the  intestate,  to  the  same  extent  the  deceased  would  have  been 
if  still  living ;  and  that  the  stockholder  or  his  personal  representa- 
tive can  only  relieve  himself  from  responsibility  by  a  bona  fide  and 
absolute  sale  of  the  stock. 

14.  A  railway  company  do  not  release  money-subscriptions  by 
accepting  large  land  subscriptions  at  a  subsequent  date.19 

15.  And  a  railway  corporation,  chartered  in  one  state  to  con- 
struct and  operate  a  road  within  that  state,  cannot  emigrate  into 
another  state,  even  where  that  state  had  given  legislative  permis- 
sion to  act  therein.  And  after  having  transferred  its  business 
office  into  another  state,  where  it  performed  all  its  corporate  func- 
tions, it  is  not  competent  for  it  to  make  valid  calls  in  such  other 
state  upon  subscriptions  taken  in  the  place  of  its  creation.20 

17  Burlington  &  Mo.  River  Railw.  v.  White,  5  Clarke,  409. 

,h  Bailey  v.  Hollister,  26  N.  Y.  112.  But  it  is  here  suggested,  that  after  the 
charter  of  a  corporation  has  expired,  there  is  no  power  to  revive  it,  by  any 
agen.y  less  than  the  consent  of  all  the  corporators. 

18  Horoaday  r.  Ind.  &  111.  Central  Railw.,  9  Ind.  263. 

2'  Aspinwall  v.  Ohio  &  Mississippi  Railw.  Co.,  20  Ind.  492. 
[*201, 202] 


§  57. 


SUBSCRIPTIONS    BEFORE    DATE    OF    CHARTER. 


215 


SECTION    XT. 


Subscriptions  before  date  of  Charter. 


1.  Subscriptions  before,  date  of  charter  good. 

2.  Subscriptions  upon  condition  not  performed, 
n.  4.    When  the  condition  is  performed. 

3.  Subscription  by  a  stranger  to  induce  com- 

pany to  build  station. 

4.  Subscription  on  condition,  an  offer  merely. 


5.  Conditional  subscription  takes  effect  upon 

performance  of  the  condition. 

6.  How  far  commissioners  may  annex  con- 

ditions to  subscription. 

7.  Such  conditions  void,  if  fraudulent  as  to 

company. 


§  57.  1.  It  has  been  held  that  one  who  subscribes  before  the  act 
of  incorporation  is  obtained,  and,  by  parity  of  reason,  before  the 
organization  of  the  company,  although  after  the  act  of  incorpora- 
tion, is  holden  to  the  corporation,  to  pay  the  amount  of  his  sub- 
scription. And  a  suit  is  sustainable,  in  their  name,  upon  any 
securities  given  in  the  name  of  the  association,  or  of  the  commis- 
sioners for  organizing  the  company,  and  equally  upon  the  sub- 
scription *  itself  in  the  name  of  the  corporation.1  And  it  is  not 
competent  for  one,  who  is  a  subscriber  to  such  an  enterprise,  to 
withdraw  his  name  while  the  act  of  incorporation  is  going  through 
the  legislature.2 

2.  But  an  informal  subscription,  which  is  never  carried  through 
the  steps  necessary  to  constitute  the  subscribers  members  of  the 

1  Kidwelly  Canal  Co.  v.  Raby,  2  Price,  Exch.  93 ;  Selma  &  Term.  Railw.  Co. 
v.  Tipton,  5  Alabama,  786 ;  Vermont  Central  Railw.  Co.  v.  Clayes,  21  Vt.  30 ; 
Delaware  &  Atlantic  Railw.  v.  Irick,  3  Zab.  321.  In  the  last  case,  the  very  point 
ruled,  is,  whether  the  company  were  proper  plaintiffs,  in  an  action  to  enforce 
calls  against  one  who  signed  the  commissioners1  paper  for  shares  before  the  or- 
ganization. Held,  the  commissioners  were  to  be  regarded  as  agents  of  the  com- 
pany. See  also  Troy  &  Boston  Railw.  v.  Tibbits,  18  Barb.  297  ;  Stanton  v. 
Wilson,  2  Hill,  153;  Troy  &  Boston  Railw.  v.  Warren,  18  Barb.  310;  Hamilton 
Plank  Road  Co.  v.  Rice,  7  Barb.  157  ;  Stewart  v.  Hamilton  College,  2  Denio, 
417  ;  Danbury  &  N.  Railw.  v.  Wilson,  22  Conn.  435.  So  also  a  subscription  to 
the  capital  stock  of  a  railway,  made  on  the  solicitation  of  one  who  was  not  a 
commissioner,  but  who  felt  an  interest  in  the  road,  and  volunteered  to  take  up 
subscriptions  to  its  stock,  was  held  valid  in  one  case.  Railway  Company  v. 
Rodrigues,  10  Rich.  (S.  C.)  278.  An  agreement  to  take  a  certain  number  of 
shares  of  the  stock  of  a  railway  company  made  by  signing  a  paper  with  others, 
in  advance  of  obtaining  the  act,  is  equivalent  to  a  subscription  for  shares  after 
the  act  is  obtained.     Burke  v.  Lechmere,  L.  R.  6  Q.  B.  297. 

2  Kidwelly  Canal  Co.  v.  Raby,  2  Price,  Exch.  93;  Brownlee  v.  Ohio,  Ind.  & 
111.  Railw.  Co.,  18  Ind.  68. 

[*203] 


21(3  ASSESSMENTS    OR    CALLS.  PART  II. 

company,  lias  been  held  inoperative,  as  no  compliance  with  the 
act.8  And  a  subscription,  upon  condition  that  the  road  is  built 
through  certain  specified  localities,  the  company  at  the  time  not 
lining  to  build  the  road  through  those  places,  will  not,  it  has 
been  held,  make  the  subscriber  liable  to  an  action  for  calls,  even 
if  the  condition  be  ultimately  performed  by  the  company.4     But 

1  Troy  &  Boston  Railw.  r.  Tibbits,  18  Barb.  298. 

4  Macedon  &  Bristol  Plank  R.  v.  Lapham,  18  Barb.  313.  In  this  case  it 
seems  to  have  been  decided  that  such  a  subscription  is  not  good,  as  a  subscrip- 
tion for  stuck,  not  upon  the  ground  mainly  that  it  was  conditional  and  so  against 
publif  policy,  or  from  want  of  mutuality,  but  upon  the  ground  of  an  extension  of 
the  road  and  an  increase  of  the  capital  stock.  But  see  also  Utica  &  Sch.  Railw. 
v.  Brinckerhoff,  21  Wend.  139,  where  such  a  decision  is  made.  But  the  current 
of  authority,  both  English  and  American,  is  almost  exclusively  in  a  counter 
direction.  It  is  impossible,  upon  any  fair  ground  of  construction,  to  consider 
such  a  subscription,  where  the  road  is  located  in  a  given  line,  in  faith,  and  in 
fulfilment  of  the  condition,  as  a  mere  offer,  unaccepted.  It  is  a  proffer,  a  propo- 
sal, accepted,  and  as  much  binding  as  any  other  possible  consideration.  But  if 
it  were  to  be  regarded  as  a  mere  offer,  standing  open,  upon  every  principle  of 
reason  and  law,  when  accepted,  according  to  its  terms,  it  is  binding  as  a  contract 
and  no  longer  revocable,  and  the  only  case  of  much  weight,  which  ever  attempted 
to  maintain  the  opposite  view,  that  of  Cooke  v.  Oxley,  3  T.  R.  653,  has  been 
regarded  as  overruled  upon  that  point  for  many  years.  See  L'Amoreux  v. 
Gould,  3  Selden,  349  ;  Conn.  &  Passumpsic  Rivers  Railw.  v.  Bailey,  24  Vt.  478. 
Mr.  Benjamin,  in  his  book  on  Sales,  pp.  47-50,  attempts  to  uphold  the  case  of 
Cooke  v.  Oxley,  on  the  ground  that  it  has  been  constantly  misunderstood  by  the 
American  courts  and  text-writers.  That  may  be  so.  But  we  fail  to  perceive 
any  sensible  ground  upon  which  that  case  can  be  upheld  to  the  full  extent.  If  a 
continuing  offer  is  made  without  consideration,  no  doubt  it  may  be  withdrawn  at 
any  time  before  it  is  accepted ;  and  after  the  withdrawal  is  made  known  to  the 
other  party  he  is  no  longer  afc  liberty  to  act,  upon  it.  But  until  that  event,  or  the 
expiration  of  the  offer  by  lapse  of  time,  he  is  at  liberty  to  accept  it;  and  if  he  do 
so,  a  valid  contract  is  thereby  created  between  the  parties,  upon  the  basis  of  the 
offer.  This  view  is  placed  upon  very  satisfactory  grounds  by  Mr.  Justice  Nelson, 
in  Taylor  v.  Merchants1  Fire  Ins.  Co.,  9  How.  (U.  S.),  390.  There  is,  unques- 
tionably, this  difference  between  a  standing  offer  made  upon  consideration  and  one 
made  gratuitously  ;  that  in  the  former  case  it  cannot  be  withdrawn,  and  in  the  latter 
it  may  lie.  But  even  in  the  case  of  a  gratuitous  offer,  the  withdrawal  does  not 
become  effective  until  notice  of  such  withdrawal  reaches  the  adverse  party.  If 
the  latter,  before  such  notice,  do  that,  which  by  the  terms  of  the  offer  amounts 
to  unconditional  acceptance,  the  contract  is  complete,  and  both  parties  irrevoca- 
bly bound  by  it. 

In  the  case  of  Boston  &  Maine  Railw.  v.  Bartlett,  3  Cush.  224,  the  subject  is 
very  justly  illustrated  by  Mr.  Justice  Fletcher:  "  In  the  present  case,  though  the 
writing  Bigned  by  the  defendants  was  but  an  offer,  and  an  offer  which  might  be 
revoked,  vet,  while  it  remained  in  force  and  unrevoked,  it  was  a  continuing  offer 

[*203] 


§  57.  SUBSCRIPTIONS   BEFORE   DATE    OF   CHARTER.  217 

*one  might  perhaps  raise  some  question,  whether,  upon  general 
principles,  such  a  subscription  ought  not  to  be  binding,  as  a 
*  standing  offer  accepted  and  acted  upon  by  the  company,  which  is 
sufficient  consideration  for  the  promise.5 

during  the  time  limited  for  acceptance;  and,  during  the  whole  of  that  time,  it 
was  an  offer  every  instant,  but  as  soon  as  it  was  accepted  it  ceased  to  be  an  offer 
merely,  and  then  ripened  into  a  contract.  The  counsel  for  the  defendants  is 
most  surely  in  the  right,  in  saying  that  the  writing  when  made  was  without  con- 
sideration, and  did  not,  therefore,  form  a  contract.  It  was  then  but  an  offer  to 
contract ;  and  the  parties  making  the  offer  most  undoubtedly  might  have  with- 
drawn it  at  any  time  before  acceptance. 

"  But  when  the  offer  was  accepted,  the  minds  of  the  parties  met,  and  the  con- 
tract was  complete.  There  was  then  the  meeting  of  the  minds  of  the  parties, 
which  constitutes  and  is  the  definition  of  a  contract.  The  acceptance  by  the 
plaintiffs  constituted  a  sufficient  legal  consideration  for  the  engagement  on  the 
part  of  the  defendants.  There  was  then  nothing  wanting  in  order  to  perfect  a 
t  valid  contract  on  the  part  of  the  defendants.  It  was  precisely  as  if  the  parties 
had  met  at  the  time  of  the  acceptance,  and  the  offer  had  then  been  made  and 
accepted,  and  the  bargain  completed  at  once. 

"  A  different  doctrine,  however,  prevails  in  France,  and  Scotland,  and  Hol- 
land. It  is  there  held,  that  whenever  an  offer  is  made,  granting  to  a  party  a 
certain  time  within  which  he  is  to  be  entitled  to  decide  whether  he  will  accept 
it  or  not,  the  party  making  such  offer  is  not  at  liberty  to  withdraw  it  before  the 
lapse  of  the  appointed  time.  There  are  certainly  very  strong  reasons  in  support 
of  this  doctrine.  Highly  respectable  authors  regard  it  as  inconsistent  with  the 
plain  principles  of  equity,  that  a  person  who  has  been  induced  to  rely  on  such  an 
engagement  should  have  no  remedy  in  case  of  disappointment.  But,  whether 
wisely  and  equitably  or  not,  the  common  law  unyieldingly  insists  upon  a  consid- 
eration, or  a  paper  with  a  seal  attached. 

"  The  authorities,  both  English  and  American,  in  support  of  this  view  of  the 
subject,  are  very  numerous  and  decisive  ;  but  it  is  not  deemed  to  be  needful  or 
expedient  to  refer  particularly  to  them,  as  they  are  collected  and  commented  on 
in  several  reports  as  well  as  in  the  text-books.  The  case  of  Cooke  v.  Oxley,  3 
T.  R.  653,  in  which  a  different  doctrine  was  held,  has  occasioned  considerable 
discussion,  and,  in  one  or  two  instances,  has  probably  influenced  the  decision. 
That  case  has  been  supposed  to  be  inaccurately  reported,  and  that  in  fact  there 
was  in  that  case  no  acceptance.  But,  however  that  may  be,  if  the  case  has  not 
been  directly  overruled,  it  has  certainly  in  later  cases  been  entirely  disregarded, 
and  cannot  now  be  considered  as  of  any  authority. 

"  As,  therefore,  in  the  present  case,  the  bill  sets  out  a  proposal  in  writing, 
and  an  acceptance  and  an  offer  to  perform,  on  the  part  of  the  plaintiffs,  within 
the  time  limited,  and  while  the  offer  was  in  full  force,  all  which  is  admitted  by 
the  demurrer,  so  that  a  valid  contract  in  writing  is  shown  to  exist,  the  demurrer 
must  be  overruled." 

6  See  this  subject  more  fully  discussed  in  §§  51,  55,  ante.  See,  also,  Johnson 
v.  Wabash  &  M.  V.  Railw.,  16  Ind.  389. 

[*204, 205] 


218  ASSESSMENTS    OR    CALLS.  PART  II. 

3.  And  even  where  a  mere  stranger  subscribes  to  a  railway 
company,  with  others,  in  order  to  induce  the  company  to  build  a 
Station-house  and  improve  the  roads  to  it,  and  to  aid  the  company 
in  such  work .  and  the  company  perform  the  condition  on  their 
part,  the  subscription  is  upon  sufficient  consideration,  and  may  be 
en  forced  against  the  subscribers.6 

I.  And  a  subscription  to  the  stock  of  a  railway  company,  con- 
ditioned to  be  void  unless  the  company  would  accept  the  convey- 
ance of  a  specific  tract  of  land  at  a  given  price,  is  a  mere  offer  to 
invest  the  land  in  shares,  and  until  accepted  by  the  company  is  of 
no  validity.7 

5.  A  subscription  upon  the  performance  of  a  condition  becomes 
absolute  upon  such  performance.  The  subscription  takes  effect 
from  that  time  ;  the  first  instalment  required  to  be  paid  at  the  time 
of  subscription  then  becomes  due  and  payable,  and  the  subscriber 
liable  to  assessment  for  the  remainder.8 

6.  There  is  another  case9  wherein  propositions  are  declared 
which  seem  at  variance  with  the  general  rule,  that  subscriptions 
dependent  upon  conditions  are  not  effectual  until  such  conditions 
are  complied  with.  It  was  here  held,  that  commissioners  ap- 
pointed to  receive  subscriptions  to  the  stock  of  a  projected  railway 
company  are  so  far  limited  in  their  authority  that  they  have  no 
power  to  attach  conditions  to  subscriptions  received  by  them,  and 
where  they  do  so  the  act  is  not  binding  upon  the  company,  and 
that  after  the  organization  of  the  corporation,  the  directors  have 
no  power  to  assume  the  subscriptions  upon  the  conditions  named, 
i.  e.  that  the  company  assume  the  payment  of  the  subscriptions 
and  release  the  subscribers. 

7.  But  we  apprehend  that  if  this  decision  is  maintainable  upon 
*  recognized  rules  of  law,  it  must  be  because  the  whole  scheme  of 
such  a  subscription  evidences  a  covert  fraud  upon  the  contem- 
plated corporation,  and  that  the  act  of  the  directors  is  but  one  step 
in  fulfilment  of  the  scheme,  as  the  case  shows  the  action  of  the 
first  board  of  directors  was  immediately  repealed  upon  the  coming 
in  of  a  new  board,  and  the  court  held  it  competent  to  show  what 

s  Kennedy  v.  Colton,  28  Barb.  59. 
7  Junction  Railway  Company  v.  Reeve,  15  Ind.  236. 
5  Ashtabula  &  New  L.  Railw.  v.  Smith,  15  Ohio  (N.  S.),  328. 
Bedford  Railw.  Co.  v.  Bowser,  48  Penn.  St.  29.     See,  also,  Lowe  v.  E.  & 
K.  Railw.,  1  Head,  659. 

[*206] 


58. 


SUBSCRIPTION    UPON   SPECIAL   TERMS. 


219 


took  place  at  the  time  of  passing  the  first  resolutions  with  a  view 
to  establish  the  fraudulent  purpose. 


SECTION   XII. 


Subscription  upon  Special  Terms. 


1.  Subscriptions  not  payable  in  money. 

2.  Subscriptions  at  a  discount,  not  binding, 
n.  2.   Contracts  to  release  subscriptions   not 

binding. 

3.  4.  Subscriptions  before  and  after  organiza- 

tion.    Preside?it  may  accept  conditional 
subscriptions. 

5.  Recent  case  in  Alabama. 

6.  True  rule  to  be  deduced  from  all  the  cases. 


7.  Important  case  on  par  values. 

8.  Difficulty  of  maintaining  them. 

9.  Sad  effects  of  opposite  course  on  com- 

mercial fair  dealing. 

10.  Can  a  corporation  stipulate  to  pay  in- 

terest on  stocks  ? 

11.  Such  a  certificate  of  stock  is  not  thereby 

rendered  inoperative  for  legitimate  pur- 
poses. 


§  58.  1.  It  is  well  settled,  that  a  railway,  or  other  joint-stock 
company,  cannot  receive  subscriptions  to  their  stock,  payable  at 
less  sums,  or  in  other  commodities,  than  that  which  is  demanded 
of  other  subscribers.  Hence  subscriptions,  payable  in  store-pay, 
or  otherwise  than  in  money,  will  be  held  a  fraud  upon  the  other 
subscribers,  and  payment  enforced  in  money.1 

2.  So  too  in  a  case  where  subscriptions  to  stock  of  such  a  com- 
pany *  are,  by  the  agents  of  the  company,  agreed  to  be  received  at 
a  discount,  below  the  par  value  of  the  shares,  it  will  be  regarded 
as  a  fraud  upon  the  other  shareholders,  and  not  binding  upon  the 
company.2 

1  Henry  v.  Vermilion  &  Ashland  Railw.  Co.,  17  Ohio,  187.  But  in  one 
case,  Philadelphia  &  West  Chester  Railw.  v.  Hickman,  28  Penn.  St.  318,  it 
is  said  the  company  may  compromise  subscriptions  for  stock,  which  are  doubtful, 
upon  receiving  part  payment ;  or  may  receive  payment  in  labor  or  materials,  or 
in  damages  which  the  company  is  liable  to  pay,  or  in  any  other  liability  of  the 
corporation.  The  certificates  of  stock  in  this  case  were  issued  to  the  contractors, 
in  part  payment  of  work  done  by  them  upon  the  road ;  to  others,  in  part  pay- 
ment for  a  locomotive,  for  sleepers,  for  land-damages,  and  for  cars.  We  do  not 
understand  how  there  can  be  any  valid  objection  to  receiving  payment  for  sub- 
scriptions to  the  capital  stock  of  a  railway  company  in  this  mode,  if  the  shares, 
so  disposed  of,  are  intended  to  be  reckoned  at  their  fair  cash  value,  at  the  time 
of  the  contract  being  entered  into.  It  is  certain,  contracts  of  this  kind  have  been 
very  generally  recognized  by  the  courts  as  valid,  and  no  fraud  upon  the  other 
subscribers. 

2  Mann  v.  Cooke,  20  Conn.  178.     In  this  case  the  defendant  subscribed  for 

[*207] 


220  ASSESSMENTS   OR   CALLS.  PART  II. 

*  3.  In  a  case  in  Pennsylvania,3  it  is  said  that  subscriptions 
made  to  the  capital  stock  of  a  corporation  before  its  organization, 

fortv  shares  in  the  capital  stock  of  a  railway  company,  upon  condition  that  all 
future  calls  should  be  paid,  as  required,  or  the  shares  should  become  the  prop- 
erty of  the  company.  He  thereupon  received  certificates  of  ownership  of  the 
forty  shares,  the  special  terms  of  his  subscription  not  being  known  to  the  other 
Bubsci  ibers. 

Si  niie  time  afterwards,  the  company  being  largely  indebted,  and  insolvent,  and 
the  greater  part  of  the  instalments  on  its  stock  being  unpaid,  the  president  made 
an  arrangement  with  defendant  that  he  should  immediately  pay  the  instalments 
on  twenty  shares  of  his  stock,  in  full,  and  he  was  thereupon  to  be  discharged  from 
all  liability  on  the  other  twenty  shares.  Defendant  complied  with  these  terms, 
and  the  money  paid  went  for  the  benefit  of  the  company. 

The  plaintiff  was  appointed  receiver  of  the  effects  of  the  company,  and  brought 
this  bill  in  equity  to  obtain  payment  of  the  balance  due  upon  the  other  twenty 
shares,  and  it  was  held  :  — 

1.  That  the  subscription  for  the  stock  was  in  legal  effect  the  same  as  an  ordi- 
nary subscription  for  stock,  without  condition. 

2.  That  the  arrangement  made  with  the  president  of  the  company  was  void, 
as  a  fraud  upon  stockholders  and  creditors. 

3.  That  the  company,  being  created  for  public  purposes,  could  not  receive 
subscriptions  under  a  private  arrangement  at  less  than  the  par  value  of  the  stock, 
as  this  would  deprive  the  company  of  so  much  of  its  available  means,  and  thus 
operate  as  a  fraud  upon  all  parties  interested. 

But  where  one  paid  for  stock  in  a  railway  company,  under  a  secret  agreement 
with  the  commissioner  of  contracts  that  he  might  receive  land  of  the  company 
at  a  future  day,  and  pay  in  the  stock  certificate,  and  the  company  declined  to 
ratify  the  contract,  it  was  held  the  subscriber  was  released  from  his  portion  of 
the  contract,  and  might  recover  the  money  he  paid  for  the  stock  of  the  com- 
pany. Weeden  v.  Lake  Erie  &  Mad  River  Railway,  1-4  Ohio,  563.  But  in  the 
case  of  the  Cincinnati,  Indiana,  &  Chicago  Railw.  v.  Clarkson,  7  Ind.  595,  it 
seems  to  be  considered,  that  the  company  are  bound  by  a  contract  to  compen- 
sate a  solicitor  of  subscriptions  to  the  capital  stock,  payable  in  land,  but  no  ques- 
tion is  made  in  regard  to  the  validity  of  the  subscriptions.  The  solicitors  were 
ordered  by  the  directors  to  accept  such  subscriptions,  and  were  to  have  two  per 
cent  on  all  which  were  accepted  by  the  company,  and  the  contract  was  held 
binding  upon  the  company.  An  agreement  by  a  railway  company,  that  a  sub- 
scriber for  stock  may  pay  the  full  amount,  or  any  part  of  his  subscription,  and 
receive  "interest  thereon  until  the  road  goes  into  operation"  does  not  oblige 
the  company  to  pay  interest  before  the  road  goes  into  operation.  Waterman  v. 
Troy  &  Greenfield  Railway,  8  Gray,  433.  See,  also,  Buffalo  &  N.  Y.  City  Railw. 
v.  Dudley,  1-4  N.  Y.  336 ;  ante,  §  54,  pi.  4.  An  agreement  to  pay  interest  upon 
stock  "  as  soon  as  paid,"  means  fully  paid.  Miller  v.  Pittsburg  &  Connellsville 
Railw.,  40  Penn.  St.  237. 

3  Pittsburg  &  Connellsville  Railw.  v.  Stewart,  41  Penn.  St.  54.  The  question 
of  the  presumptive  effect  of  the  conduct  of  a  subscriber  after  the  organization  of 
the  company,  in  attending  and  taking  part  in  the  meetings  of  the  company 
[*208] 


§  58.  SUBSCRIPTION   UPON    SPECIAL   TERMS.  221 

must  always  be  payable  in  money  only.  But  after  the  organiza- 
tion, the  company  may  stipulate  with  the  subscriber  for  pay- 
ment in  any  other  mode,  and  can  only  enforce  the  contract 
according  to  its  terms ;  and  the  act  of  the  president  of  the  com- 
pany in  accepting  conditional  subscriptions  is  binding  upon  the 
company. 

4.  It  is  also  held  in  the  same  case,3  that  the  fact  the  subscriber 
makes  part  payment  in  money  before  call,  will  not  estop  him  from 
setting  up  the  special  contract  in  defence  of  an  after  call. 

5.  But  in  a  somewhat  recent  case  in  Alabama,4  it  was  held  that 
a  subscription  to  the  capital  stock  of  a  railway  company  in  ex- 
press terms  made  payable  in  work,  in  grading  the  line,  to  be 
taken  at  the  public  or  private  letting  and  performed  to  the  accept- 
ance of  the  company's  engineer,  could  not  be  enforced  against  the 
subscriber  until  he  had  had  reasonable  opportunity  to  perform  the 
contract  in  the  manner  specified  by  its  terms.  But  if  after  that, 
the  defendant  failed  on  his  part  to  perform  it,  he  was  liable  to  pay 
the  amount  in  money.  It  is  here  said  that  the  subscriber  must 
take  notice  of  the  published  lettings  of  the  work. 

6.  The  cases  may  seem  conflicting  upon  this  point ;  but  the 
true  principle  seems  to  be,  that  the  corporation  can  only  enforce 
the  contract  of  subscription  according  to  its  terms,  and  of  this  the 
subscriber  cannot  complain,  or  resist  successfully  the  enforcement 
of  his  subscription  in  that  mode.  But  so  far  as  the  creditors  of  the 
eompanj^  are  interested  in  the  matter,  they  may  hold  the  directors 
responsible  for  having  received  the  amount  of  the  capital  stock  in 
money.  And  as  to  the  duty  of  the  directors,  they  cannot,  in 
strictness  and  fairness,  receive  subscriptions  payable  in  any  thing 
but  money ;  nor  can  they  launch  the  company  until  the  whole 
capital  stock  is  subscribed  in  money.  And  any  fraud  or  evasion 
in  this  particular  will  render  the  directors  responsible  for  the  debts 
of  the  .company,  as  in  equity  and  fair  dealing  it  should. 

*  7.  There  is  a  very  sensible  case  5  in  North  Carolina  bearing 

upon  the  proper  construction  of  any  special  contract  with  the  company,  is  here 
considerably  discussed. 

4  Eppes  v.  M.  G.  &  T.  Railw.,  35  Alabama,  33;  H.  &  P.  Plank  R.  Co.  v. 
Bryan,  6  Jones  Law,  82. 

5  Neuse  River  Nav.  Co.  v.  Commissioners  of  Newbern,  7  Jones  Law,  275. 
But  in  Shoemaker  v.  Goshen  Turnpike  Co.,  14  Ohio  (N.  S.),  5G9,  from  the  mere 
permission  in  the  statute  to  submit  the  question  of  subscription  to  the  voters  of  a 
township,  the  court  implied  the  power  to  issue  bonds  in  payment  of  such  sub- 

[*209] 


222  ASSESSMENTS    OR    CALLS.  PART  II. 

upon  this  question.  The  legislature  had  authorized  the  town  of 
Newborn  to  take  stock  in  a  company  for  improving  the  navigation 
of  the  river  Neuse,  by  which  the  business  of  the  town  was  ex- 
pected  to  be  advanced.  The  town  was,  by  the  act,  authorized  to 
pay  for  the  stock  subscribed  by  them  with  their  bonds,  to  be  is- 
Bued  and  sold  on  certain  terms,  but  the  amount  of  bonds  issued 
was  restricted  to  the  amount  of  the  stock  subscribed,  and  it  was 
held,  that  as  the  corporation  could  not,  except  by  legislative  sanc- 
tion, accept  anything  but  money  in  payment  of  stock,  and  could 
not  issue  stock  at  any  rate  below  par,  the  bonds  could  not  be 
sold  below  par ;  and  that  to  a  mandamus  to  compel  the  town  to 
pay  for  stock  thus  subscribed,  it  must  be  regarded  as  a  sufficient 
return,  that  the  authorities  of  the  municipality  had  prepared  and 
executed  the  bonds,  and  had  offered  the  same  for  sale  by  public 
advertisement,  and  had  diligently  endeavored  otherwise  to  effect  a 
sale  of  the  same  on  the  terms  prescribed  by  the  statute,  and  had 
not  been  able  to  sell  the  same. 

8.  This  case  unquestionably  puts  these  perplexing  inquiries 
upon  the  true  basis  ;  that  is  of  fair  dealing  or  no  dealing  at  all. 
But  we  apprehend  that  railway  contractors  and  builders  would 
regard  it  as  placing  the  matter  in  a  very  impracticable  light. 
And  we  are  not  prepared  to  say  how  far  the  courts  will  feel  justi- 
fied in  departing  from  the  strict  letter  of  the  law  in  these  particu- 
lars, out  of  deference  to  the  speculative  tendencies  of  the  age. 

9.  It  is  certain  that  corporate  stocks,  from  the  first,  are  now 
always  more  or  less  a  matter  of  speculation  in  the  market ;  and 
the  same  is  true  of  all  municipal  bonds  issued  in  aid  of  enter- 
prises affecting  the  interests  of  such  corporations.  And,  in  fact, 
no  one  ever  dreams  of  demanding  strictly  par  values,  in  dealing 
either  with  the  bonds  or  the  stock,  and  we  do  not  suppose  it  can 
now  ever  be  brought  back  to  the  strictly  par  basis.  There  is,  too, 
another  great  embarrassment  in  the  way  of  return  to  par  values. 
We  have,  in  fact,  no  par  basis  to  which  to  return.  Until  a  specie 
•  basis  is  reached,  every  thing  is  at  the  mercy  of  speculators  and 
monopolists.  This  is,  no  doubt,  a  very  melancholy  state  of  affairs 
to  have  a  great  commercial  country  in.  But  so  long  as  commer- 
cial men  endure  it,  and  the  government  submits  to  it,  we  do  not 
see  how  the  courts  can  remedy  it.     But  it  is  certainly  refreshing 

scription  in  the  usual  negotiable  form,  and  to  negotiate  them  to  the  company  at 
par,  in  payment  for  the  stock  subscribed. 
[*210] 


§  58.  SUBSCRIPTION   UPON   SPECIAL   TERMS.  223 

to  see  courts  struggling  to  resist  in  every  way  in  their  power  such 
a  fearful  tide  of  evil.  In  our  humble  judgment,  unless  some 
mode  of  escape  is  found,  speculation  and  monopoly  will  eat  out 
all  honesty  and  fair  dealing  in  all  commercial  transactions,  and 
the  country  will  in  its  commerce  become  a  band  of  legalized 
plunderers  upon  each  other.  The  monopoly  in  flour  and  grain 
and  some  of  the  other  staples  of  the  country  is  scarcely  less  than 
that,  at  the  present  time. 

10.  There  seems  to  be  some  question  whether  a  corporation 
can  stipulate  to  pay  interest  upon  its  stock  certificates  from  the 
first  without  regard  to  the  earnings  of  the  company.  It  is  certain 
such  a  stipulation  is  at  variance  with  the  ordinary  duties  of  corpor- 
ations, and  will  not  therefore  come  within  the  range  of  the  implied 
authority  of  the  directors  of  the  company.  But  in  one  case,6  it 
seems  to  have  been  considered,  that  the  stockholders  might  so 
ratify  such  a  stipulation  as  to  render  it  binding  upon  the  company. 
But  we  should  very  seriously  question  if  any  such  authority  is  im- 
plied from  the  general  grant  of  corporate  power  for  ordinary  busi- 
ness purposes,  like  that  of  railways.  It  would  seem  to  require  a 
special  delegation  of  authority  by  the  legislature,  and  in  that  form 
it  is  nothing  else  but  a  device  for  borrowing  money,  in  advance  of 
launching  the  corporation  upon  its  legitimate  functions. 

11.  The  case  last  cited  6  decided  that  such  a  stipulation,  super- 
added to  a  certificate  of  stock,  will  not  defeat  its  original  effect  of 
making  the  holder  a  member  of  the  corporation  ;  and  that  if  certi- 
ficates of  stock  be  so  issued  by  the  directors,  it  will  be  regarded  as 
a  sufficient  ratification  of  them  by  the  corporation  that  at  a  stock- 
holders' meeting  a  majority  voted  to  pay  such  interest  in  the  bonds 
of  the  company  ;  but  the  holders  are  not  thereby  compellable  to  ac- 
cept payment  in  that  mode,  unless  they  assented  to  the  vote. 

6  McLaughlin  v.  Detroit  &  Milw.  Railw.,  8  Mich.  100.  It  seems  scarcely 
allowable  to  treat  the  vote  of  the  majority  as  a  ratification  of  an  act  of  the  direc- 
tors beneficial  to  the  minority,  and  at  the  same  time  not  binding  upon  the  minority 
except  by  their  own  consent.  Richardson  v.  Railw.  Co.,  44  Vt.  613,  where  the 
question  is  very  extensively  examined  and  placed  upon  the  most  plausible  ground, 
that  such  a  condition  in  the  subscription  may  be  binding  upon  the  company, 
whenever  its  surplus  earnings  will  enable  them  to  meet  the  payment,  which 
amounts  to  nothing  more  than  a  guaranty  of  a  dividend  to  that  amount. 

[*210] 


224 


ASSESSMENTS    OR    CALLS. 


PART  II. 


♦SECTION    XIII. 


/v  /  nil '«/>(,■  Relief  from  Subscriptions  obtained  by  Fraud. 


1 .  -     stantial  misrepresentations  in  obtaining 

subscriptions  will  avoid  them. 

2.  But  for  circumstantial  misconduct  of  the 

din  dors,  in  the  matter,  they  alone  are 
liable. 


Party  purchasing  must  make  reasonable 
examination  of  papers  referred  to  on  all 
doubtful  points.  Bui  no  relief  will  be 
granted,  where  there  is  no  fraud,  or  in- 
tentional misrepresentation. 

Directors  cannot  make  profit  for  themselves. 


$  59.  1.  The  directors  of  a  railway  company,  who  make  repre- 
sentations on  behalf  of  the  company  to  induce  persons  to  sub- 
scribe for  the  stock,  so  far  represent  the  company  in  the  transaction, 
that  if  they  induce  such  subscription  by  a  substantial  fraud,  the 
contract  will  be  set  aside  in  a  court  of  equity.1  The  proper  inquiry 
in  such  case  is,  "  Whether  the  prospectus,  so  issued,  contains  such 
representations,  or  such  suppression  of  existing  facts,  as,  if  the 
real  truth  had  been  stated,  it  is  reasonable  to  believe  the  plaintiff 
would  not  have  entered  into  the  contract ;  that  is,  that  he  would 
not  have  taken  the  shares  allotted  to  him,  and  those  which  he  pur- 
chased." 2 

1  Sir  John  Eomilly,  M.  R.,  in  Pulsford  v.  Richards,  17  Beav.  87;  8.  c.  19 
Eng.  L.  &  Eq.  387,  392.  The  prospectus  issued  in  such  cases  is  to  be  regarded 
as  a  representation.  And  where  one  is  induced  to  take  shares  in  a  joint-stock 
company,  through  the  false  and  fraudulent  representations  of  the  directors,  he  is 
not  liable  to  calls  for  the  purpose  of  paying  the  expenses  of  the  company.  The 
Royal  British  Bank,  Brockwall's  case,  29  Law  Times,  375;  s.  c.  4  Drew.  205. 
And  where  one  of  the  directors  of  a  company  put  the  name  of  an  extensive 
stockholder  in  the  company,  who  resided  in  a  foreign  country,  to  a  new  sub- 
scription for  forty  additional  shares,  without  consultation  with  such  person,  upon 
the  belief  that  he  would  ratify  the  act,  and  upon  being  informed  of  such  act,  he 
made  no  objection  for  the  period  of  nearly  seven  years,  during  which  time  the 
company  had  applied  the  dividends  upon  his  stock  in  payment  of  such  subscrip- 
tion, having  no  intimation  of  any  dissent  upon  his  part,  it  was  he  d  the  subscrip- 
tion thereby  became  binding,  and  that  the  party  could  not  recover  such  dividends 
of  the  company.  Philadelphia,  Wilmington,  &  Baltimore  Railw.  v.  Cowell,  28 
Penn.  St.  329. 

-  Pulsford  v.  Richards,  17  Beav.  87;  s.  c.  19  Eng.  L.  &  Eq.  392;  Jennings 
v.  Broughton,  17  Beav.  234;  s.  c.  19  Eng.  L.  &  Eq.  420.  One,  to  entitle  him- 
self to  be  relieved  from  bis  subscription,  must  show  that  he  acted  upon  the  false 
representations  of  the  directors  in  a  matter  of  fact  material  to  the  value  of  the 
enterprise,  and  not  upon  the  mere  speculation  of  the  directors,  or  upon  his  own 

[*211] 


§  59.  SUBSCRIPTIONS   OBTAINED    BY   FRAUD.  225 

*  2.  Bat  the  omission  to  state  in  a  prospectus  the  number  of 
shares  taken  by  the  directors,  or  other  persons,  in  their  interest, 
is  no  such  fraud  as  will  enable  a  subscriber  to  avoid  his  subscrip- 
tion.2 The  fact  that  the  directors  of  the  company  had  entered  into  a 
contract  with  one,  as  general  superintendent  of  construction,  for 
four  per  centum  upon  the  expenditure  ;  and  that  this  was  an  ex- 
orbitant compensation,  and  was,  in  fact,  intended  to  compensate 
such  person  for  his  services,  in  obtaining  the  charter,  and  that  this  is 
not  stated  in  the  prospectus,  is  no  such  suppression  as  will  exon- 
erate subscribers  for  stock.  "  There  was  not  the  suppression  of  a 
fact,  that  affected  the  intrinsic  value  of  the  undertaking.  That 
value  depended  upon  the  line  of  the  projected  railway,  the  popu- 
lation, the  commercial  wealth,  the  traffic  of  the  places  through 
which  it  passed,  the  difficulties  of  the  construction,  and  the  cost  of 
the  land  required.  Extravagance  in  the  formation  of  a  line  of 
railway  is  a  question  of  liability  of  the  individual  directors  to  the 
shareholders,  but  not  a  ground  for  annulling  the  contract  be- 
tween them."  2 

3.  There  can  be  no  question  one  will  be  affected  with  notice  of 
all  facts  discoverable  by  examination  of  papers  referred  to  in  a 
prospectus  for  the  sale  of  shares,  provided  such  papers  are  accessi- 
ble to  him,  unless  the  facts  stated  in  the  prospectus  are  so  specific 
as  to  divert  interest  from  all  further  inquiry.  It  was  accordingly 
held  that  where  the  contract  of  subscription  bound  the  subscriber 
to  the  terms  of  the  articles  of  association,  an  examination  of  which 
would  have  disclosed  the  facts  upon  which  the  party  claimed  to 
be  relieved  from  his  subscription,  but  that  trusting  to  the  state- 
ments contained  in  the  prospectus,  he  did  not  look  further, 
this  neglect  or  omission  was  no  answer  to  his  claim  for  relief.3 
But  the  party  is  not  entitled  to  relief  by  reason  of  the  repre- 
sentation of  any  fact,  made  in  good  faith,  and  upon  reason- 
exaggerated  expectations  of  the  prospective  success  and  value  of  the  undertaking. 
See,  also,  upon  this  general  subject,  the  remarks  of  the  Master  of  the  Rolls,  p. 
427.  In  the  case  of  Reese  River  Silver  Mining  Co.  v.  Smith,  17  W.  R.  1042, 
s.  c.  LawRfp.  4  H.  L.  64,  Lord  Cairns  is  reported  to  have  said,  "  If  persons 
take  upon  themselves  to  make  assertions,  as  to  which  they  are  ignorant  whether 
they  are  true  or  untrue,  they  become,  in  a  civil  point  of  view,  as  responsible  as 
ff  they  had  asserted  that  which  they  knew  to  be  untrue ; "  provided  it  prove  to 
be  so,  his  lordship  intended  to  imply,  of  course. 

3  Central  Railw.  v.  Kisch,  Law  Rep.  2  H.  L.  99. 

vol.i.  •        15  [*212] 


226 


ASSESSMENTS   OR   CALLS. 


PART  II. 


able  grounds  of  probability,  but  which   proves  unfounded    upon 
grounds  equally  unknown  to  both  parties.4 

4.  But  the  learned  judge  in  one  case  2  suggests,  with  great  pro- 
priety, that  if  the  directors  have  made  contracts,  in  the  course  of 
the  performance  of  their  duties,  from  which  advantage  is  expected 
to  *  arise  to  themselves,  or  to  others,  for  their  benefit,  mediately  or 
immediately,  they  may,  in  a  court  of  equity,  be  made  to  stand  in 
the  plaoe  of  trustees  to  the  shareholders.5 


SECTION    XIY. 


Forfeiture  of  Shares.  —  Relief  in  Equity. 


1.  Requirements  of  charter  and  statutes  must 

be  strictly  pursued. 

2.  If  not,  equity  will  set  aside  the  forfeiture. 

3.  Must  credit  the  stock  at  full  market  value. 


4.  Provisions  of  English  statutes. 

5.  Evidence  must  be  express,  that  all  requisite 

steps  were  pursued. 


§  60.  1.  The  company,  in  enforcing  the  payment  of  calls  by 
forfeiture  of  the  stock,  must  strictly  pursue  the  mode  pointed 
out  in  their  charter  and  the  general  laws  of  the  state.  This  is  a 
rule  of  universal  application  to  the  subject  of  forfeitures,  and  one 
which  the  courts  will  rigidly  enforce,  and  more  especially  where 
the  forfeiture  is  one  of  the  prescribed  remedies,  given  to  the 
party,  and  against  which  equity  does  not  relieve,  when  fairly 
exercised.1 

2.  But  as  the  company,  in  such  case,  ordinarily  stand  in  both 
relations  of  vendor  and  vendee,  their  conduct,  in  regard  to  fair- 
ness, will  be  rigidly  scrutinized,  and  the  forfeiture  set  aside  in 
courts  of  equity,  upon  evidence  of  slight  departure  from  perfect 
fairness. 


4  Kennedy  v.  Panama  Mail  Co.,  Law  Rep.  2  Q.  B.  580. 

5  Post,  §  140. 

1  Sparks  v.  Liverpool  Water- Works,  13  Vesey,  428  ;  Prendergast  v.  Turton, 
1  Younge  &  Coll.  (N.  R.)  98,  110-112.  This  case  is  put  mainly  upon  the  ground 
of  delay  and  acquiescence,  but  there  is  little  doubt  it  would  have  been  maintained, 
upon  the  general  ground  stated  in  the  text.  See  Edinburgh,  Leith,  &  N.  H.  Railw. 
v.  Hibblewhite,  6  .M.  &  \V.  707  ;  s.  c.  2  Railw.  C.  237.  But  where  the  deed  of 
settlement  01  a  joint-stock  company  provides  for  a  forfeiture  of  the  shares  with- 
out notice  to  the  subscriber,  the  forfeiture  determines  the  title  without  notice. 

[*213] 


§60  a. 


RIGHT   TO    INSPECT   BOOKS   OF    COMPANY. 


227 


3.  Henco  where  the  company  declared  the  stock  cancelled,  and 
credited  the  value  at  a  less  sum  than  the  actual  market  price  at 
the  time,  but  more  than  it  would  probably  have  sold  for  if  that 
number  of  shares  had  been  thrown  at  once  into  the  market,  the 
court  set  aside  the  forfeiture,  on  the  ground  that  the  company 
were  bound  to  allow  the  highest  market  price  which  could  be 
*  obtained,  without  speculating  on  what  might  be  the  effect  of 
throwing  a  large  number  of  shares  into  the  market.2 

4.  By  the  English  statute  the  company  are  not  allowed  to 
forfeit  a  larger  number  of  shares  than  will  produce  the  defi- 
ciency required.3  And  upon  payment  to  the  company  of  the 
amount  of  arrears  of  calls,  interest,  and  expenses,  before  such 
forfeited  shares  are  sold  by  them,  the  shares  revert  to  the  former 
owner.3 

5.  The  evidence  of  the  company  having  pursued  the  require- 
ments of  their  act,  in  declaring  the  forfeiture,  must  be  express 
and  not  conjectural.4 


SECTION    XV. 

Right  of  Corporators  and  Others  to  inspect  Boohs  of  Company. 


1.  May  inspect  and  take  minutes  from  books. 

2.  Discussion   of  the   extent   to   which   such 

books  are  evidence. 

3.  For  what  purposes  such  books  are  impor- 

tant as  evidence. 


4.  This  will  not  embrace  the  books  of  pro- 

ceedings of  directors. 

5.  Party  claiming  to  be  shareholder  may  in- 

spect register. 

6.  Allowed  when  suit  or  proceedings  pending. 

7.  Party  may  have  aid  in  the  inspection. 


§  60  a.  1.  It  seems  to  be  conceded  as  a  well-settled  rule  of 
law,  that  the  shareholders  or  corporators  in  a  joint-stock  corpora- 
tion are  entitled,  as  matter  of  right,  to  inspect  and  take  minutes 
from  the  books  of  the  company  at  all  reasonable  times,1  as  they 
are  the  best  evidence  of  the  facts  there  registered,  and  equally  the 

Stewart  v.  Anglo-California  Gold  Mining  Co.,  18  Q.  B.  736;  s.  c.  14  Eng.  L. 
&  Eq.  51. 

2  Stubbs  v.  Lister,  1  Y.  &  Coll.  (C.  C.)  81. 

3  8  &  9  Vict.  c.  16,  §§  34,  35. 

4  Cockerell  v.  Van  Diemen's  Land  Co.,  18  C.  B.  454 ;  s.  c.  36  Eng.  L.  &  Eq. 
405. 

1  Angell  &  Ames  on  Corp.  §  681. 

[*214] 


228  ASSESSMENTS   OR   CALLS.  PART  II. 

property  of  all  the  proprietors.2  And  the  board  of  directors  of 
the  company  have  no  power  to  exclude  any  member  from  the 
exercise  of  this  right,  even  upon  the  ground  that  he  is  unfriendly 
to  the  interests  of  the  company.3 

•J.  But  it  seems  to  be  now  settled  that  strangers  cannot  obtain 
the  inspection  of  such  books,  even  by  application  to  the  court, 
their  contents  being  regarded  as  private  memoranda,  in  no  sense 
possessing  any  public  character,4  notwithstanding  a  contrary 
♦practice  obtained5  for  a  time.  It  may  sometimes  have  been  as- 
Bumed,  that  the  books  of  private  corporations  possessed  a  higher 
quality  of  evidence  than  is  the  fact.  We  do  not  apprehend  that 
they  are  in  any  sense  indispensable  primary  evidence  of  the  facts 
there  recorded.  As  a  general  thing,  as  to  the  organization  of  the 
company  and  the  choice  of  officers,  all  that  is  requisite  will  be  to 
prove,  de  facto,  the  .organization  of  the  company  and  the  exercise 
of  such  offices  by  the  persons  named.  Where  it  is  requisite  that 
an  authority  be  given  by  the  majority  vote  of  the  company,  it  may 
most  conveniently  be  shown  by  the  record,  and  perhaps  in  .such  a 
case- the  records  of  the  corporation  may  fairly  be  considered  the 
best  proof  of  the  facts,  if  in  the  power  of  the  party,  as  if  the  cor- 
poration itself  were  called  to  prove  such  vote.  But  any  party  not 
entitled  to  the  custody  of  the  papers  can  only  prove  their  contents, 
unless  the  corporation  is  the  opposing  party,  in  which  case  he 
may  give  notice  to  produce  the  books,  and,  in  default,  may  prove 
the  contents  by  secondary  evidence.  It  has  been  decided  that  the 
clerk  of  the  company  cannot  be  compelled  to  produce  the  books  on 
a  subpoena  duces  tecum!' 

3.  It  has  been  held  that  a  bank  depositor  has  the  right,  under 
proper  circumstances  and  in  a  reasonable  manner,  to  inspect  the 
books  of  the  bank.7  In  practice  it  is  not  one  time  in  ten  where 
the  record  books  of  a  corporation  are  ever  referred  to  in  court, 
unless  to  fix  a  date  or  the  precise  form  of  a  vote  upon  which  a 
power  is  made  to  depend.     But  the  registry  of  shareholders  may 

1  Owinga  v.  Speed,  5  Wheaton,  420,  424. 

3  People  D.Throop,  12   Wend.  183;  Cotheal  v.  Brower,  1  Seld.  5G2. 

4  Mayor  of  Southampton  v.  Greaves,  8  T.  R.  590. 

5  Mayor  of  Lynn  v.  Denton,  1  T.  R.  689,  and  cases  cited. 

6  I'tiea  Bank  v.  llillard,  5  Cow.  419;  Narragansett  Bank  v.  Atlantic  Silk 
Co.,  3  Met.  282. 

7  Union  Bank  i\  Knapp,  3  Pick.  96. 

[*215] 


§  60  a.  RIGHT   TO    INSPECT   BOOKS    OF    COMPANY.  229 

be  properly  regarded  as  the  primary  evidence  of  membership,  but 
by  no  means  indispensable  or  conclusive.8 

4.  Where  the  deed  of  settlement  under  which  a  corporation  is 
registered  contained  a  provision  "  that  the  books  wherein  the 
proceedings  of  the  company  are  recorded  shall  be  kept  at  the 
principal  office  of  the  company,  and  shall  be  open  to  the  inspection 
of  the  shareholders,"  it  was  held  that  the  clause  gave  shareholders 
power  only  to  inspect  the  books  of  minutes  of  proceedings  of 
the  general  meetings,  and  not  of  the  minutes  of  the  proceedings 
of  the  directors.9 

*  5.  In  a  somewhat  recent  English  case  10  it  was  held,  that  a 
party  whose  claim  to  be  a  shareholder  is  disputed  by  the  company 
may,  in  an  action  brought  against  the  company,  inspect  any  en- 
tries in  the  register  which  relate  to  the  matter  in  dispute. 

6.  And  in  a  still  more  recent  case,  where  one  of  the  members 
of  the  corporation  was  in  controversy  with  the  company  in  regard 
to  his  right  to  act  as  one  of  the  governing  body,  which  right  de- 
pended upon  an  inspection  of  the  records  of  the  company  in  order 
to  determine  its  usages,  the  court  granted  permission  to  inspect 
the  books.11  But  it  is  here  said  this  will  not  be  done  unless  there 
is  a  suit  or  some  proceedings  pending. 

7.  And  in  the  inspection  of  all  documents,  by  order  of  the 
Court  of  Chancery,  the  party  in  whose  favor  the  order  is  made 
has  the  right  to  have  such  aid  in  the  inspection,  either  by  coun- 
sel, interpreters,  or  experts,  as  will  make  the  inspection  available 
to  him.12 

8  We  refer  to  what  we  have  before  said  upon  the  subject.  Ante,  §  18,  pi.  10- 
13;  §  23,  n.  8. 

9  Reg.  v.  Mariquita  Mining  Co.,  1  El.  &  El.  289. 

10  Foster  v.  The  Bank  of  England,  8  Q.  B.  689. 

11  Reg.  v.. Saddlers'  Co.,  10  \V.  R.  87.     At  Chambers,  Grompion,  J. 

11  Swansea  Vale  Railw.  Co.  v.  Budd,  Law  Rep.  2  Eq.  274 ;  s.  c.  12  Jur.  (N. 
S.)  561.  As  to  the  effect  of  the  certificate  of  the  clerk  of  a  corporation  under 
its  seal,  see  New  Orleans  &  O.  R.  Co.  v.  Lea,  12  La.  Ann.  388.  A  passenger 
who  has  brought  suit  against  a  railway  company  for  injury  sustained  on  its  line 
has  the  right  to  inspect  the  record  of  accidents  kept  by  the  company,  on  the 
report  of  the  conductor,  in  obedience  to  the  statute.  Woolley  v.  North  London 
Railw.,  17  W.  R.  650 ;  s.  c.  id.  797,  L.  R.  4  C.  P.  602. 

[*216J 


PART   III. 

THE   LAW   OF   RIGHT    OF    WAY,     EMINENT 
DOMAIN,    ETC. 


PART    III. 

THE     LAW     OF     RIGHT     OF     WAY,     EMINENT 
DOMAIN,     ETC. 


^CHAPTER    X. 


RIGHT    OP    WAY    BY    GRANT. 


SECTION    I. 


Obtaining  Lands  by  excess   Consent. 


9. 
10. 

11. 


Leave  granted  by  English  statute. 
Persons  under  disability. 
n.  2.  Money  to  take  the  place  of  the  land. 
Consent  to  pass  railway. 
Duty  of  railway  in  all  cases. 
License  to  build  railway.     Extent  of  du- 
ration. 

Company  bound  by  conditions  in  deed. 
Parol  license  good  till  revoked. 
Sale  of  road  no  abandonment. 
Deed  conveys  incident;  not  explainable. 
One   cannot    derogate  from    compulsory 
grant. 


12.  But  this  does  not  apply  to  accidental  in- 

cidents. 

13.  Case   in   New    York   Court  of  Appeals 

somewhat  at  variance  with  the  preced- 
ing cases. 

14.  A  municipal  corporation  may  be  bound 

by  implied  contract  in  the  qrant  of 
land  so  as  not  to  be  at  liberty  to  recede 
from  it. 

15.  A    mere   agreement  to  sell,  although  in 

writing,  will  not  justify  the  company  in 
entering  upon  the  land,  or  defeat  pro- 
ceedings under  the  statute  to  recover 
damages  for  taking  the  land. 


§61.  1.  The  English  statute1  enables  railway  companies  to 
purchase,  by  contract  with  the  owners,  "  all  estates  or  interests 
(in  any  lands)  of  what  kind  soever,"  if  the  same,  or  the  right  of 
way  over  them,  be  requisite  for  their  purposes. 

1  8  &  9  Vict.  c.  18,  §  6.  And  companies  have  the  right,  upon  general  prin- 
ciples, in  this  country,  to  acquire  the  right  of  way  by  contract  with  the  land- 
owners. But  such  concessions  by  natural  persons  to  public  companies  will 
receive  a  reasonably  strict  construction,  so  as  to  secure  the  rights  of  land-owners. 
Unangst's  Appeal,  55  Penn.  St.  128. 

[*217] 


234  BIGHT    OF    WAY    BY   GRANT.  PART  III. 

•J.  Ami  by  another  section  of  the  same  statute  such  companies 
are  empowered  to  purchase  such  lands  of  persons  legally  inca- 
pacitated  to  convey  the  litle,  under  other  circumstances,  as  guar- 
dians of  infants,  committees  of  lunatics,  trustees  of  charitable  or 
Other  uses,  tenants  in  tail,  or  for  life,  married  women,  seised  in 
their  own  right,  or  entitled  to  dower,  executors  or  administrators, 
and  all  parties,  entitled,  for  the  time  being,  to  the  receipt  of  the 
rents  ami  profits.2 

*  :'».  The  valuation  in  this  latter  class  of  cases  is  to  be  made  by 
disinterested  persons,  and  the  price  paid  into  the  bank  for  the 
benefit  of  the  parties  interested. 

1.  And  where  a  railway  act  provided,  in  terms,  that  nothing 
therein  should  authorize  the  company  to  do  any  damage  or  preju- 
dice to  the  lands,  estate,  or  property  of  any  corporation  or  person 
whatsoever,  without  the  consent  in  writing  of  the  owner  and  oc- 
cupier, it  was  held  they  could  not  pass  the  line  of  another  railway 
without  their  consent,  although  the  withholding  of  such  consent 
should  frustrate  the  purpose  of  the  grant.3 

5.  In  this  country  most  of  the  railway  charters  contain  a  power 
to  the  company  to  acquire  lands,  by  agreement  with  the  owner. 
In  such  case  it  has  been  held  the  rights  of  the  company  are  the 
same  as  where  they  take  their  land  under  their  compulsory 
powers.4  And  they  are  bound  to  the  same  care  in  constructing 
their  road.4 

2  Ilutton  v.  The  London  &  South  W.  Railw.,  7  Hare,  264.  Some  suggestions 
are  here  made  by  Vice-Chancellor  Wigram,  in  regard  to  the  time  within  which  it 
is  requisite  to  make  compensation  in  the  several  modes  of  taking  lands.  The 
principal  question  decided  is,  that  in  regard  to  lands,  injuriously  affected  by 
railway  works  upon  other  lands,  it  is  not  requisite  to  make  compensation  in  ad- 
vance.  Hut  where  lands  are  purchased  from  persons  under  disability,  the  course 
of  devolution  of  the  property  is  not  thereby  changed,  but  the  money  paid  in 
compensation  is  to  take  the  place  of  the  land,  and  to  be  treated  as  real  estate. 
Midland  Counties  Railw.  v.  Oswin,  1  Coll.  (C.  C.)  74;  s.  c.  3  Railw.  C.  497; 
Ex  parte  Flamank,  1  Simons  (N.  S.),  260;  In  re  Horner's  Estate,  5  De  G.  & 
•s-  183;  -.  i  .  13  Eng.  L.  &  Eq.  531;  In  re  Stewart's  Estate,  1  Sm.  &  G.  32; 
8.  c.  13  Eng.  I..  &  Eq.  533. 

'  (  larence  Railw.  v.  Great  North  of  England  Railw.,  4  Q.  B.  45;  Gray  v. 
The  Liverpool  &  Bury  Railw.  9  Beav.  391;  s.  c.  4  Railw.  C.  235. 

4  Whitcomb  v.  Vermont  Central  Railw.,  25  Vt.  49,  69.     This  right  to  acquire 

lands,  by  contract  with  the  owners,  is,  by  implication,  if  not  expressly  limited  to 

the  necessities  of  the  company,  we  presume,  the  same  as  taking  lands  in  invitum, 

and  cannot  be  extended  to  any  private  use.     But  if  the  owner  of  the  land  con- 

[*218] 


§61.  OBTAINING   LANDS   BY    EXPRESS    CONSENT.  235 

6.  And  where  the  railway  have  the  power  to  take  five  rods, 
through  the  whole  course  of  their  line,  and  a  land-owner  deeds 
them  the  full  right  to  locate,  construct,  and  repair,  and  for  ever 
maintain  and  use  their  road  over  his  land,  if,  in  laying  the  drains 
or  ditches  through  the  land,  it  becomes  necessary  to  go  beyond 
the  limits  of  the  five  rods,  in  order  to  guard  against  the  effect  of 
a  stream  to  be  passed,  the  company  may  lawfully  do  so  under  the 
grant.5 

*  7.  In  case  of  a  deed  to  a  railway  company  of  land,  on  which 
to  construct  their  road,  the  assent  of  the  company  will  be  pre- 
sumed, and  they  are  bound  by  the  conditions  of  the  grant,  as  that 
the  road  shall  be  so  constructed  as  not  to  interfere  with  buildings 
on  the  land.6 

8.  An  oral  permission  to  take  and  use  land  for  a  railway  is 
a  bar  to  the  recovery  of  damages  for  such  use,  until  the  permis- 
sion  is   revoked.7     In   one  case  before  the  House  of  Lords,8  a 

sent  to  the  use,  the  constitutional  objection  is  removed,  and  the  right  to  hold  the 
land  is  a  question  between  the  company  and  the  public,  probably.  Dunn  v.  City 
of  Charleston,  Harper,  189;  Harding  v.  Goodlett,  3  Yerg.  41;  11  Wend.  149; 
Embury  v.  Conner,  3  Comstock,  516. 

5  Babcock  v.  The  Western  Railw.,  9  Met.  553  ;  s.  c.  1  Redf.  Am.  Railw.  Cases, 
191.  But  a  conti-act  with  the  owner  of  land,  for  leave  to  build  the  road  through 
his  land,  and  staking  out  the  track  through  the  land,  is  no  such  occupation  as  will 
be  notice  of  the  right  of  the  company  against  a  subsequent  mortgagee.  Merritt 
v.  Northern  Railw.,  12  Barb.  605.  But  the  payment  by  the  company  of  the  price 
of  the  land,  and  changing  their  route  in  faith  of  the  title,  might  give  them  an 
equity  superior  to  that  of  a  subsequent  mortgagee.  lb  The  deed  of  one  tenant 
in  common  is  a  good  release  of  his  claim  for  damages,  although  it  convey  no  right 
as  against  his  co-tenant.  Draper  v.  Williams,  2  Mich.  536.  But  an  agreement 
to  sell  land  to  a  railway  company,  and  a  tender  of  the  price  by  the  company, 
creates  no  title  in  them.     Whitman  v.  Boston  &  Maine  Railw.,  3  Allen,  133. 

6  Rathbone  v.  Tioga  Navigation  Co.,  2  Watts  &  Serg.  74.  And  the  rights 
and  duties  of  the  company,  in  such  case,  are  precisely  the  same  as  if  the  land  had 
been  condemned,  by  proceedings  in  invitum,  under  the  statute.  Norris  v.  Vt. 
Central  Railw.,  28  Vt.  99.  Such  grant  carries  the  incidents  necessary  to  its 
enjoyment.  And  if  it  becomes  necessary,  in  constructing  the  road,  to  make  a 
deep  cut,  that  may  be  done,  and  the  company  are  not  bound  to  protect  the  banks 
of  the  excavation  by  a  wall.  Hortsman  v.  Lexington  &  Cov.  Railw.,  18  B.  Mon. 
218.     See  also  Louisville  &  Nash.  R.  v.  Thompson,  18  B.  Mon.  735. 

7  Miller  v.  Auburn  &  Syracuse  Railw.,  6  Hill,  61.  It  seems  to  have  been 
made  a  question  whether  the  company,  after  the  revocation  of  such  license,  could 


8  Ramsden  v.  Dyson,  Law  Rep.  1  Ho.  Lds.  123;  s.  c.  12  Jur.  (N.  S.)  506. 

[*219] 


236  RIGHT    OF    WAY    BY    GRANT.  PART  III. 

very  important,  and  as  it  seems  to  us  reasonable  and  just  quali- 
fication L8  annexed  to  the  familiar  doctrine  of  implied  assent  to 
the  appropriation  of  land  to  a  permanent  use  by  the  owner  stand- 
ing by  and  not  objecting.  It  is  here  ruled,  "If  a  stranger  builds 
upon  the  land  of  A.,  supposing  it  to  be  his  own,  and  A.  remains 
wilfully  passive,  equity  will  not  allow  him  to  profit  by  the  mistake  ; 
but  if  the  stranger  knows  that  the  land  upon  which  he  is  building 
belongs  to  A.,  then  A.  may  assert  his  legal  rights  and  take  the 
'  benefit  of  the  expenditure.  And  a  tenant  building  upon  his  land- 
lord's land,  in  the  absence  of  such  special  circumstances,  acquires 
no  right  against  him  at  the  expiration  of  the  tenancy.  But  a 
mere  license  to  build  works  connected  with  a  railway,  the  dam- 
ages to  be  settled  with  a  person  named,  or  "  on  equitable  terms 
hereafter,"  does  not  amount  to  any  definite  agreement.9 

9.  Where  land  is  conveyed,  for  the  use  of  a  railway,  upon  con- 
dition that  it  shall  revert  to  the  owner  upon  the  abandonment  of 
the  road,  and  the  road  was  sold,  under  a  mortgage,  to  the  state, 
and  by  the  state  and  by  new  companies  chartered  for  that  purpose 
completed,  it  was  held,  that  the  grantor  was  not  entitled  to  hold 
the  land.10 

be  allowed  to  remove  the  fixtures  of  their  road  from  the  land,  such  as  rails,  spikes, 
&c.  But  it  was  held  they  might,  as  trade  fixtures.  Northern  Central  Railw. 
f.  (  lanton  Co.,  30  Md.  347.  And  such  license,  when  executed,  by  the  construc- 
tion of  the  work,  is  not  allowed  to  be  revoked.  The  only  relief  the  party  is 
entitled  to  is  compensation  for  his  land.  Water  Power  v.  Chambers,  1  Stock. 
Ch.  471.  And  it  was  held  in  a  somewhat  recent  English  case,  Corby  v.  Hill,  4 
C.  B.  (  X.  S.)  556;  s.  c.  31  Law  Times,  181,  that  where  the  owner  of  land  had 
given  oral  permission  to  one  for  a  private  way,  he  could  not  obstruct,  or  give 
permission  to  others  to  obstruct,  such  way ;  and  that  where  a  third  person,  by 
permission  of  the  land-owner,  placed  building  materials  in  the  way,  whereby  an 
injury  accrued  to  the  person  having  the  way,  he  might  sue  for  such  injury. 

9  Fitchburg  Railw.  v.  Boston  &  Maine  Railw.,  3  Cush.  58.  But  a  writing 
whereby  the  owner  of  land  along  the  line  of  a  contemplated  gravel  road  gave  the 
road-company  the  right  to  enter  upon  his  landflfcnywhere  within  a  mile  of  the 
contemplated  road  and  dig  and  remove  gravel,  as  much  as  they  might  require, 
was  beld  not  a  mere  license,  but  a  grant  irrecoverable.  Bracken  v.  Ruskville 
Gravel  Road  ( '...,  l'7  Ind.  346. 

10  Harrison  r.  Lexington  &  Ohio  Railw.,  9  B.  Mon.  470.  So,  too,  if  land  is 
conveyed  on  condition  that  an  embankment  (water-tight)  over  a  brook  crossing 
the  land  shall  be  erected  by  the  grantors,  and  that  the  embankment,  or  dam,  with 
the  floodgates  or  sluices  therein,  might  be  used  for  hydraulic  purposes  by  the 
grantors,  their  heirs,  and  assigns,  the  grantees  not  to  be  liable  to  the  grantors 
for  any  damage   they  might  sustain   by  a  break  in  such  dam,  unless  the  same 

[*220j 


§  61.  OBTAINING    LANDS    BY    EXPRESS    CONSENT.  237 

10.  Where  land  was  conveyed  to  a  railway  company,  for  the 
purpose  of  constructing  their  road,  on  which  was  a  tenement,  and 
to  this  water  was  conveyed  by  an  aqueduct  from  another  portion 
of  the  land  of  the  defendant,  and  the  price  of  the  land  was  fixed 
by  the  commissioners,  the  defendant  at  the  time  claiming  the  right 
to  withdraw  the  water,  and  this  not  being  objected  to  by  the  presi- 
dent and  engineer  of  the  company,  who  were  present  at  the  *  time, 
it  was  held,  that  the  deed  containing  no  exception  in  regard  to  the 
water,  the  company  acquired  the  right  to  its  use,  in  the  manner  it 
had  been  before  used,  and  the  defendant  was  liable  to  an  action  for 
diverting  it,11  and  the  intention  of  the  parties  could  not  be  deter- 
mined by  extraneous  evidence. 

11.  So,  also,  the  principle  that  a  grantor,  knowing  the  purpose 
for  which  his  deed  is  accepted,  cannot  derogate  from  his  own 
grant,  applies  to  the  case  of  a  compulsory  conveyance,  under  legis- 
lative authority,  and  the  act  is  sufficient  notice  to  the  grantor  of 
the  purposes  of  the  conveyance.  But  this  rule  wiU  not  apply  to 
any  accidental  state  of  facts,  existing  at  the  time  of  the  grant,  as 
the  support  resulting  from  an  excavation  being  filled  with  water  at 
the  time,  so  as  to  entitle  the  grantee  to  insist  upon  its  continu- 
ance. 

12.  And  accordingly,  where  a  railway  took  the  land  above  a 
mine  for  the  support  of  the  abutments  of  a  bridge,  the  mine  hav- 
ing been  abandoned  for  forty  years  and  full  of  water,  it  was  held 

should  happen  through  the  gross  neglect  or  wilful  misfeasance  of  the  grantees, 
but  that  the  grantees  should  repair  the  dam  forthwith,  it  was  held  to  be  a  condi- 
tion subsequent,  the  failure  to  perform  which  would  give  the  grantors,  or  their 
heirs,  a  right  of  re-entry  at  their  election.  But  it  was  further  said,  that  the  con- 
veyance of  the  estate  by  the  grantees  defeated  the  condition,  and  that  the  assignee 
had  no  remedy  upon  it.  Underbill  v.  Saratoga  &  Wash.  Eailw.,  20  Barb.  455. 
And  such  conditions  may  be  waived  by  the  party  in  whose  favor  they  are  made, 
as  in  a  grant  of  land  for  a  railway  track,  the  road  to  be  completed  by  a  day 
named,  or  the  deed  to  be  void,  which  was  not  done  ;  but  the  grantor  continued 
to  treat  the  company  as  having*the  right  to  use  the  land  for  the  purposes  of  the 
grant,  and  it  was  held  a  waiver  of  the  condition.  Ludlow  v.  New  York  &  Har- 
lem Railw.,  12  Barb.  440.  The  mere  permission  by  a  railway  company,  that 
some  of  their  warehouses  or  engine-houses  shall  be  used  by  private  dealers  for 
warehousing  purposes  on  payment  of  rent,  will  not  operate  as  a  forfeiture  of 
the  rights  of  the  company  in  favor  of  the  owner  of  the  fee,  but  will  entitle  him  to 
maintain  a  writ  of  entry  against  the  company  for  the  establishment  of  his  right 
therein,  and  to  recover  mesne  profits  during  such  misappropriation  of  the  land. 
Proprietors  of  Locks  &  Canals  v.  Nashua  &  Lowell  Railw.,  104  Mass.  1. 
11  Vermont  Central  Railw.  v.  Hills,  23  Vt.  681.       • 

[*221] 


238  RIGHT   OF    WAY   BY   GRANT.  PART  III. 

they  could  not  insist  upon  having  the  water  remain  in  the  pit,  as 
a  support  to  t  ho  earth,  but  that  they  were  entitled  to  be  protected 
from  damage  likely  to  result  from  working  the  mine.12 

L3.  It  a  railway  have  power  to  take  land  by  consent  of  the 
owner,  an  oral  consent  is  sufficient.13  And  if  the  company  take 
land  and  put  it  to  their  use  without  the  consent  of  the  owner,  or 
any  other  proceeding  under  their  powers,  it  is  a  trespass,  but  can 
only  be  sued  for  by  the  person  then  owning  the  land,  and  not  by  his 
grantee.18  But  this  case  was  reversed  upon  error,  and  it  was  de- 
cided, somewhat  at  variance  with  the  present  English  rule,  that 
such  a  license,  coupled  with  an  interest,  was  still  revocable  at  the 
option  of  the  licensor.  But  the  final  conclusion  of  the  court  of 
error,  that  "  consent,"  in  such  an  act,  meant  the  effectual  consent 
of  the  law  expressed  with  due  formality,  seems  altogether  the  more 
reasonable  ground  upon  which  to  place  the  case. 

14.  The  New  York  Court  of  Appeals14  held  that  municipal  cor- 
porations, as  to  their  rights  and  powers  over  lands  owned  by  the 
corporation,  were  to  be  viewed  the  same  as  any  other  owner  *  of 
land,  and  that  their  acts  and  resolutions  in  regard  to  the  use  of 
such  land  by  others  were  not  to  be  regarded  as  either  of  a  legisla- 
tive or  governmental  character ;  and  that  although  such  corpora- 
tions have  no  power  as  a  party  to  make  contracts  which  shall 
control  or  embarrass  their  legislative  powers  and  duties,  yet,  as 
these  legislative  duties,  or  powers,  only  extend  to  regulations  of 
police  and  internal  government,  and  not  to  the  mere  imposition  of 
a  sum  of  money  for  revenue  purposes,  consequently  an  ordinance 
imposing  a  license  duty  upon  city  cars,  for  revenue  purposes  only, 
is  not  an  ordinance  for  police  and  internal  government,  and  the 
imposition  of  an  annual  tax  upon  a  city  passenger  railway,  in 
derogation  of  its  rights,  as  defined  by  a  specific  agreement  between 
the  city  and  the  railway  company,  for  purposes  of  revenue  merely, 
is  unlawful  and  void.15 

18  North  Eastern  Railw.  Co.  v.  Elliott,  1  Johns.  &  H.  145  ;  s.  c.  G  Jur.  (N.  S.) 
817. 

13  Central  Railw.  Co.  v.  Hitfield,  5  Dutcher,  206;  s.  c.  in  error,  id.  571. 

M  Mayor,  &c  of  the  City  of  New  York  v.  The  Second  Avenue  Railw.,  32 
X.  ">  .  261  ;  s.  c.  3-1  Barb.  4-1,  where  the  case  was  similarly  ruled. 

Che  terms  of  this  contract  appear  more  fully  where  the  case  is  reported  in 
Barbour.  [I  prescribed  the  regulations  to  which  the  company  should  be  liable, 
requiring  no  further  license,  and  reserving  no  power  to  require  one  thereafter. 
This  was  hi  Id  to  preclude  the  city  authority  from  making   the  imposition  de- 


§62. 


SPECIFIC   PERFORMANCE   IN    EQUITY. 


239 


15.  Proof  of  a  written  agreement  to  sell  land  to  a  railway  com- 
pany at  a  given  price,  within  a  limited  time,  and  a  tender  of  the 
same  within  the  time,  and  a  refusal  to  accept,  will  not  justify 
the  company  in  locating  their  road  upon  the  land,  or  defeat 
proceedings  under  the  statute  to  recover  damages  for  such 
location.16 


♦SECTION    II. 


Specific  Performance  in  Equity. 


1.  Contracts  before  and  after  date  of  charter. 

2.  Contracts  where  all  the  terms  not  defined. 

3.  Contracts  for  land  umpire  to  fix  price. 

4.  Where  mandamus  also  lies. 

6.   Contracts  not  signed  by  company. 

6.  Where  terms  are  uncertain. 

7.  Contracts  giving  the  company  an  option. 

8.  Contracts  not  understood  by  both  parties. 

9.  Order  in  regard  to  construction  of  high- 

ways may  be  enforced  at  the  suit  of  the 
municipality. 


10.  The   courts   sometimes  decline  to  decree 

specific  performance  on  the  ground  of 
public  convenience. 

11.  No  decree  of  specific  performance  when 

contract  vague  and  uncertain,  and  for 
other  reasons. 

12.  Courts  of  equity  will  not   in   the  final 

decree  make  the  price  a  charge  on  the 
land,  unless  so  declared  at  first. 


§  62.  1.  There  can  be  no  doubt  courts  of  equity  will  decree 
specific  performance  of  contracts  for  land,  made  by  consent  of  the 
owners,  as  well  after  the  act  of  parliament  as  before.1 

2.  If    the    agreement    contains    provisions   for  farm-crossings, 

manded.  It  would  seem,  the  case  might  have  been  decided,  in  conformity  with 
the  dissenting  opinion  of  Mr.  Justice  Ingraham,  in  the  court  below,  without  any 
great  violence  to  principle.  See  also  Branson  v.  Philadelphia,  47  Penn.  St.  329  ; 
Veazie  v.  Mayo,  45  Me.  560;  People  v.  New  York  &  Harlem  R.  Co.,  45  Barb. 
73 ;  Vilas  v.  Mil.  &  Miss.  R.  Co.,  15  Wis.  233.  A  grant  of  land  to  the  use  of 
a  highway  seems  to  be  regarded  as  giving  the  municipal  authorities  the  same 
rights  in  regard  to  its  use  as  where  the  land  is  condemned  for  that  purpose. 
Murphy  v.  The  City  of  Chicago,  29  111.  279.  The  grant  to  a  railway  company  of 
a  right  to  build  a  tunnel  will  not  preclude  the  owner  of  the  land  from  digging 
minerals  under  the  tunnel,  in  conformity  with  the  general  railway  acts.  London 
&  N.  W.  Railw.  Co.  v.  Ackroyd,  8  Jur.  (N.  S.)  911. 

16  Whitman  v.  Boston  &  Maine  Railw.,  3  Allen,  133.  This  written  contract 
might  be  evidence  of  the  value  of  the  land,  or  an  admission  by  the  owner,  and 
as  such  might  probably  be  used  in  the  proceedings  under  the  statute  for  estimat- 
ing damages. 

1  Ante,  §  13,  el  seq. ;  Walker  v.  The  Eastern  Counties  Railw.  Co.,  5  Railw. 
C.  469 ;  s.  c.  6  Hare,  594. 

[*223] 


240  RIGHT    OF   WAY   BY   GRANT.  PART  III. 

fences,  and  cattle-guards,  cither  express  or  implied,  the  master 
will  In1  directed  to  make  the  proper  inquiry,  and  any  decree  for 
specific  performance  should  provide  minutely  for  all  such  inci- 
dents.'2 But,  upon  general  principles,  if  the  agreement  provide 
that  the  price  of  land  is  to  he  fixed  by  an  arbitrator  or  umpire,  it 
has  generally  been  held  that  a  suit  for  specific  performance  is  not 
maintainable.8 

3.  But  if  the  arbitrator  have  acted  and  fixed  the  price,4  and  by 
parity  of  reason,  if  the  umpire  is  named,  and  ready  to  act,  there 
being  no  power  of  revocation,  a  court  of  equity  may  decree  spe- 
cific performance.  Hence  in  the  case  above,1  the  Vice-Chancellor 
held,  that,  as  the  contract  was  to  take  the  land  on  the  terms  pre- 
scribed in  the  act  of  parliament,  the  court  had  the  means  of 
*  applying  those  terms,  so  as  to  get  at  the  price,  and  might  there- 
fore require  the  party  to  put  them  in  motion,  and  then,  in  its  dis- 
cretion, decree  specific  performance. 

4.  And  the  consideration,  that  possibly  the  party  might  proceed 
by  mandamus,  will  not  deprive  him  of  this  remedy  in  equity,  un- 
less the  aict  specially  provides  the  remedy  by  mandamus.5 

5.  But  if  the  company  take  a  bond  of  a  land-owner,  to  convey 
so  much  land  as  they  shall  require,  and  subsequently  appropriate 
the  land,  but  decline  accepting  a  deed  and  paying  the  price,  equity 
will  not  decree  specific  performance  of  the  contract,  the  bond  not 
being  signed  by  the  company.6  But  in  such  a  case  specific 
performance  will  be  decreed  against  the  party  signing  the  bond 
upon  refusal." 

6.  A  contract  to  sell  a  railway  company  "  the  land  they  take  " 
from  a  specified  lot  of  land,  at  twenty  cents  a  foot,  "  for  each  and 
every  foot  so  taken  by  said  company,"  imports  a  taking  by  the 
company,  under  their  compulsory  powers,  and  will  not  be  specifi- 
cally enforced  until  so  taken  by  the  company.     And  if  the  terms 

2  Sanderson  v.  Coekermouth  &  Washington  Railw.  Co.,  19  Law  Jour.  Ch. 
503;  11  Beavan,  497. 

3  unities  v.  Gerry,  14  Vesey,  400.  But  in  this  case  the  umpire  was  not 
agreed  upon,  ami  the  court  held  they  could  not  appoint  one.  But  the  Master  of 
the  Rolls  held  that  an  agreement  to  sell,  at  a  fair  valuation,  may  be  executed. 
See  Tilh  t  v.  Charing  Cross  Company,  26  Beav.  419;  s.  c.  5  Jur.  (N.  S.)  994. 

4  Brown  r.  Bellows,  4  Tick.  179. 

6  Hodges  on  Railways,  189. 

8  Jacobs  v.  Peterborough  &  Shirley  Railw.,  8  Cush.  223. 

7  Parker  v.  Perkins,  8  Cush.  318. 

[*224] 


§  62.  SPECIFIC   PERFORMANCE   IN   EQUITY.  241 

of  a  contract  are  doubtful,  a  court  of  equity  will  not  decree  specific 
performance.8 

7.  Where  one  contracts  with  a  railway  company,  under  seal,  to 
permit  them  to  construct  their  road  over  his  land,  in  either  one 
of  two  routes,  and  to  convey  the  land  after  the  road  shall  be 
definitively  located,  with  a  condition  that  the  deed  shall  be  void, 
when  the  road  shall  cease,  or  be  discontinued,  if  the  company 
take  the  land  and  build  their  road  upon  it,  specific  performance 
will  be  decreed,  although  the  company  did  not  expressly  bind 
themselves  to  take  the  land,  or  pay  for  it.  And  where  the  com- 
pany had  been  in  the  use  of  the  land  for  their  road  three  or  four 
years,  it  was  held  no  such  unreasonable  delay  as  to  bar  the  relief 
*  sought.  The  party  cannot  excuse  himself  by  showing,  that,  from 
his  own  notions,  or  the  representations  of  the  company,  or  of 
third  persons,  he  was  induced  to  believe  that  a  different  route 
would  have  been  adopted  by  the  company,  or  that  there  was  an 
inadequacy  in  the  price  stipulated,  unless  it  be  so  gross  as  to 
amount  to  presumptive  evidence  of  fraud  or  mistake.9 

8.  But  it  is  a  good  defence,  in  such  case,  that  the  party  was 
led  into  a  mistake,  without  any  gross  laches  on  his  part,  by  an 
uncertainty  or  obscurity  in  the  descriptive  part  of  the  agreement, 
so  that  it  applied  to  a  different  subject-matter  from  that  which  he 
understood  at  the  time,  or  that  the  bargain  was  hard,  unequal, 
or  oppressive,  and  would  operate  in  a  manner  different  from  that 
which  was  in  the  contemplation  of  the  parties  when  it  was  executed. 

8  Boston  &  Maine  Railw.  v.  Babcock,  3  Cush.  228 ;  s.  c.  1  Am.  Railw.  C.  561. 
But  under  a  contract  with  a  railway  company,  giving  them  all  the  land  they 
desired,  not  exceeding  four  poles  in  width,  upon  which  to  construct  their  road, 
"  provided  said  road  shaU  not  run  farther  north  of  my  southwest  corner  than  ten 
feet,  and  not  farther  south  of  my  northeast  corner  than  140  feet,"  it  was  held 
the  company  had  a  right  to  66  feet  through  the  whole  land,  and  were  only  re- 
stricted in  relation  to  the  distance  the  road  went  from  the  corners  named. 
Lexington  &  Ohio  Railw.  v.  Ormsby,  7  Dana,  276. 

9  Western  Railw.  v.  Babcock,  6  Met.  316  ;  s.  c.  1  Am.  Railw.  C.  365.  The 
delivery  of  a  deed  to  the  agent  of  a  corporation,  in  such  case,  is  sufficient.  And 
where  the  party,  in  disregard  of  his  contract,  had  obtained  an  assessment  of 
damages  for  the  land,  under  the  statute,  his  liability  upon  the  contract  is,  to  the 
difference  between  the  appraisal  and  the  stipulated  price  in  the  contract.  Un- 
reasonable delay  is  ordinarily  a  bar  to  specific  performance  in  a  court  of  equity. 
Guest  v.  Homfray,  5  Vesey,  818 ;  Hertford  v.  Boore,  Aston  v.  Same,  5  Vesey, 
719;  Watson  v.  Reid,  1  Russ.  &  My.  236;  2  Story's  Eq.  Jur.  §§  771,  777,  and 
cases  cited. 

vol.  i.  16  [*225] 


242  RIGHT    OF    WAY    BY    GRANT.  PART  III. 

But  in  such  case  the  burden  of  proof  is  upon  the  defendant,  to 
show  mistake  or  misrepresentation.9  In  an  English  case  10  before 
the  Courl  of  Chancery  Appeal,  after  elaborate  argument,  the  Lord 
Justice  Knight  Bruce,  an  equity  judge  of  the  most  extended  learn- 
in--  and  experience,  thus  Btates  the  rule  upon  this  point.  This 
courl  will  not  enforce  specific  performance  of  a  contract,  where 
the  defendant  proves  that  he  understood  it  in  a  sense  different 
from  the  plaintiff, even  although  the  plaintiff's  construction  may  be 
the  plain  meaning  of  the  contract. 

9.  Where  the  county  commissioners  made  order  in  regard  to 
the  mode  of  construction  of  a  railway,  in  crossing  a  highway,  it 
was  held,  that  the  mayor  and  aldermen  of  a  city,  or  the  select- 
man of  a  town,  are  the  only  proper  parties  to  a  bill  for  specific 
performance,  and  that  the  land-owners,  over  which  the  railway 
j,  are  not  to  be  joined  in  the  bill.11     But  where  the  *  order 

"  Wycombe  Railw.  Co.  t>.  Donnington  Hospital,  Law  Rep.  1  Ch.  App.  268; 
8.  c.  12  Jur.  (X.  S.)  347. 

"   Brainard   r.   Conn.  River  Railw.,  7  Cush.   506.     In  Roxbury  v.  Boston  & 

l'r.'V.  K.iil-.v.,  6  Cush.  424,  it  was  also  held  the  commissioners  must  make  such 

order  specific,  and  not  in  the  alternative,  and  that  laches,  in  regard  to  such  order, 

will   not  defeat   the   claim    for  a  decree  for  specific  performance,  where  public 

-entially  concerned. 

And  courts  of  equity  have  held  a  parol  license  to  erect  public  works,  and  the 
work-  erected  in  faith  of  it,  irrevocable,  and  the  company  entitled  to  hold  the 
land  upon  making  compensation,  and  have  virtually  decreed  specific  perform- 
ance. Water  Power  Co.  v.  Chamber.  1  Stockton,  Ch.  471.  See  also  Hall  v. 
Chaffee,  13  Vt.  150;  Boston  &  Maine  Railw.  v.  Bartlett,  3  Cush.  224.  But  it 
was  held  that  an  action  for  the  price  of  land  will  not  lie  upon  a  parol  contract  of 
sale,  where  there  had  been  no  conveyance  of  the  land,  although  the  company  had 
taken  possession  and  paid  part  of  the  price.  Reynolds  v.  Dunkirk  &  State  Line 
Railw.,  17  Barb.  612.  This  is  undoubtedly  according  to  the  generally  recognized 
rule  upon  the  subject,  in  those  states  where  the  Statute  of  Frauds  is  in  force. 

In  the  ease  of  Laird  r.  Birkenhead  Railw.,  6  Jur.  (X.  S.)  140;  s.  C.  1  Johns. 
(Eng.  Ch.)  500,  the  question  of  an  estoppel  in  fact  becoming  so  fixed  upon 
a  railway  company  by  acquiescence  as  to  be  enforced  by  a  court  of  equity,  is 
discussed  by  Viee-( 'hancellor  Wood,  and  placed  upon  higher  and  sounder 
ground  ins  to  us,  than  in  most  of  the  earlier  cases.     The  leading  facts 

were,  that  the  plaintiff,  by  agreement  with  the  company,  without  writing,  had 
built  a  tunnel  through  their  land,  in  order  to  facilitate  access  to  his  own  business, 
and  had  Ulid  raill  upon  the  work,  and  had  been  in  the  use  of  the  same  for  two 
years,  paying  tolls  a-;  agreed  between  the  parties.  The  company  now  claimed 
that  the  plaintiff  was  merely  a  tenant  at  will,  and  subject  to  their  absolute  dicta- 
tion as  to  tin-  right  to  use  and  the  terms  upon  which  he  could  use  the  works   and 

[*226] 


§  62.  SPECIFIC   PERFORMANCE   IN   EQUITY.  243 

required  the  highway  to  be  so.  raised  as  to  pass  over  the  rail- 
way, at  a  place  named,  but  without  defining  the  height  to  which 
it  should  be  raised,  the  grade,  the  nature  of  the  structure,  or  the 
time  within  which  it  should  be  made,  it  was  held  too  indefinite  to 
justify  a  decree  for  specific  performance.12 

*  10.  The  Master  of  the  Rolls,  Lord  Momilly,  in  Raphael  v.  The 
Thames  Valley  Railway,13  held,  that  in  deciding  whether  specific 
performance  should  be  enforced  against  a  railway  company,  the 
court  must  have  regard  to  the  interests  of  the  public,  and  there- 
fore, where  a  bridge  had  not  been  constructed  in  conformity  with 
an  agreement  with  a  land-owner,  but  the  injury  to  the  land-owner 
was  small,  and  the  railway  had  since  been  opened  for  traffic,  and 
the  relief,  if  granted,  would  have  necessitated  an  interference  with 
the  traffic,  the  court  refused  to  compel  specific  performance. 

11.  And  it  has  been  more  recently  declared  by  the  English  courts 
of  equity,  that  where  a  contract  is  vague  and  so  uncertain  that 
no  compensation  could  be  awarded,  a  decree  for  specific  per- 
formance could  not  be  made.14  So  also  the  court  will  not  interfere 
after  considerable  lapse  of  time  and  when  the  company  are  not 
possessed  of  funds  for  completing  the  purchase.15     So  refusal  to 

gave  notice  in  writing  of  the  immediate  and  absolute  termination  of  the  contract, 
and  in  pursuance  of  such  notice  removed  the  rails  and  permanently  erected  a 
board  across  the  passage. 

The  learned  judge  overruled  the  demurrer,  and  said  "it  must  be  inferred,  from 
the  nature  of  the  transaction,  and  after  all  this  expense,  that  it  was  not  to  be 
determined  by  three  months'  notice.  .  .  .  The  necessary  inference  is,  that  it  is 
to  be  the  right  of  user,  as  long  as  the  plaintiff  is  the  owner  of  the  yard,  and  it 
would  be  a  most  unreasonable  proposition  to  say  that  the  company  should  have 
the  power  of  determining  it  at  three  months'  notice.  ...  I  consider  that  a 
contract  had  been  made  out  upon  the  face  of  the  bill,"  and  it  was  further  con- 
sidered, that,  aside  from  the  actual  use,  a  court  of  equity  would  have  decreed 
specific  performance  upon  reasonable  terms ;  but  after  the  use  for  a  considerable 
term  on  the  basis  of  an  unsigned  memorandum,  the  court  will  regard  that  as  evi- 
dence of  the  ultimate  agreement  of  the  parties.  8.  p.  Mold  v.  Wheatcroft,  27 
Beav.  510.  But  the  railway  companies  of  a  sovereignty  so  far  represent  or  par- 
take of  the  prerogative  character,  that  any  acquiescence  on  their  part  in  a  use  of 
their  lands  inconsistent  with  the  permanent  rights  of  the  public,  will  be  construed 
as  merely  temporary,  and  will  create  no  permanent  rights  in  the  party  exercising 
such  use.     Heyl  v.  P.  W.  &  B.  Railw.,  51  Penn.  St.  469. 

18  City  of  Roxbury  v.  Boston  &  Providence  Railw.,  2  Gray,  460. 

13  Law  Rep.  2  Eq.  37 ;  s.  c.  12  Jur.  (N.  S.)  656. 

14  Tillett  v.  Charing  Cross  Co.,  26  Beav.  419 ;  s.  c.  5  Jur.  (N.  S.)  994. 
is  prvse  j,,  Combrian  Railw.,  Law  Rep.  2  Eq.  444. 

[*227] 


244  RIGHT    OF    WAY   BY    GRANT.  PART  III. 

decree  specific  performance   may  be  based  upon  the  public  safety 
and  convenieni 

L2.  A:,i  a  Court  of  Equity  will  not  make  the  amount  to  be  paid 
for  land  a  charge  upon  the  land,  under  leave  to  apply  for  further 
directions,  where  it  was  not  made  so  by  the  original  decree.17 

18  Raphael  v.  Thames  Valley  Railw.,  Law  Rep.  2  Eq.  444. 
17  Attorney-General  v.  S.  &  S.  Railw.,  Law  Rep.  1  Eq.  636. 

[*227] 


§63. 


GENERAL    PRINCIPLES. 


245 


*CHAPTER     XI. 


EMINENT    DOMAIN. 


SECTION    I. 


General  Principles. 


1.  Definition  of  the  right. 

2.  Intercommunication. 

3.  Necessary  attribute  of  sovereignty. 

4.  Antiquity  of  its  recognition. 

5.  Limitations  upon  its  exercise. 


6.  Resides  principally  in  the  states. 

7.  Duty  of  making  compensation. 

8.  Navigable  ivaters. 

9.  10,  11.  Its  exercise  in  rivers,  above  tide- 

water. 


§  63.  1.  This  title  is  very  little,  found  in  the  English  books, 
and  scarcely  in  the  English  dictionaries.  But  with  us,  it  has 
been  adopted  from  the  writers  on  national  and  civil  law,  upon  the 
continent  of  Europe,1  and  is  perhaps  better  understood  than 
almost  any  other  form  of  expression,  for  the  same  idea.  It  is 
defined  to  be  that  dominium  eminens,  or  superior  right,  which  of 
necessity  resides  in  the  sovereign  power,  in  all  governments,  to 
apply  private  property  to  public  use,  in  those  great  public  emer- 
gencies which  can  reasonably  be  met  in  no  other  way. 

2.  It  is  a  distinct  right  from  that  of  public  domain,  which  is 
the1  land  belonging  to  the  sovereign.  This  is  a  superior  right 
which  the  sovereign  possesses  in  all  property  of  the  citizen  or 
subject,  whether  real  or  personal,  and  whether  the  title  were 
originally  derived  from  the  sovereign  or  not.  One  of  the  chief 
occasions  for  the  exercise  of  this  right  is,  in  creating  the  necessary 
facilities  for  intercommunication,  which  in  this  country  is  now 
very  generally  known  by  the  name  of  Internal  Improvement. 
This  extends  to  the  construction  of  highways  (of  which  turn- 
pikes and  railways  are,  in  some  respects,  but  different  modes  of 
construction  and  maintenance),  canals,  ferries,  wharves,  basins, 
and  some  others.2 

1  Vattel,  B.  1,  ch.  20,  §  244;  Code  Napoleon,  B.  2,  tit.  2,  545;  1  Black. 
Coram.  139;  Gardners.  Newburgh,  2  Johns.  Ch.  162;  2  Dallas,  310. 

a  3  Kent,  Comm.  339  et  seq.  and  notes;  Beekman  v.  Saratoga  &  Sch.  Railw., 
3  Paige,  45,  73  ;  12  Pick.  407  ;  23  id.  327  ;  3  Selden,  314.     This  right,  as  some 

[*228] 


246  EMINENT    DOMAIN.  PART  III. 

...  This  is  a  right  in  the  sovereignty,  which  seems  indispen- 
sable to  the  maintenance  of  civil  government,  and  which  seems  to 

of  the  above  cases  show,  extends  to  numerous  matters  not  named  in  the  text. 
It  would  be  "lit  of  place  here  to  enter  into  the  discussion  of  the  general  subject. 
Tin'  indispensable  prerequisites  to  the  exercise  of  the  right  will  appear,  as  tar  as 
they  apply  to  the  subject  of  this  work,  in  the  following  sections. 

That  railways  are  but  improved  highways,  and  are  of  such  public  use  as  to 
justify  the  exercise  of  the  right  of  eminent  domain,  by  the  sovereign,  in  their 
construction,  is  now  almost  universally  conceded.  Williams  v.  N.  Y.  Central 
Railw.,  L8  Barb.  222,  246;  State  v.  Rives,  5  Ired.  297;  Northern  Railw.  v. 
Concord  &  Claremont  Railw.,  7  Foster,  183;  Bloodgood  v.  M.  &  H.  Railw.,  18 
Wend.  9;  8.  c.  14  Wendell,  51 ;  s.  c.  1  Redf.  Am.  Railw.  Cases,  209;  1  Bald. 
C.  C.  Reports,  205.  See  also  3  Paige,  73 ;  3  Seld.  314.  A  freight  company  has 
been  regarded  as  not  of  such  public  interest  as  to  justify  taking  land  by  the 
right  of  eminent  domain.  This  was  for  loading  and  unloading  freight.  Memphis 
Freight  Co.  v.  Memphis,  4  Cold.  419.  But  this  case  is  perhaps  questionable.  A 
railway  for  the  purpose  of  transporting  freight  is  as  much  a  public  use  as  if  it  em- 
braced passenger  transportation.  And  a  freight  company  of  more  limited  extent 
might  be  said  to  be  in  aid  of  the  company  carrying  greater  distances.  The  mar- 
ginal railways  in  cities  for  the  purpose  of  connecting  the  different  lines  of  traffic, 
are  as  much  public  companies  and  entitled  to  exercise  the  sovereign  right  of 
eminent  domain,  as  any  other  railway.  But  no  railway  company  can  take  land 
for  other  than  public  uses,  as  for  the  deposit  of  dirt,  &c,  not  connected  with  the 
efficient  use  of  their  right  of  way.     Lance's  Appeal,  55  Penn.  St.  16. 

It  seems  to  be  well  settled,  that  the  legislature  have  no  power  to  take  the 
property  of  the  citizens  for  any  but  a  public  use  ;  but  that  a  railway  is  such  use. 
Bradley  v.  N.  Y.  &  N.  H.  Railw.,  21  Conn.  294;  Symonds  v.  The  City  of  Cin- 
cinnati, 14  Ohio,  147;  Embury  v.  Conner,  3  Comst.  511. 

But  this  is  a  power  essentially  different  from  that  of  taxation,  in  regard  to 
which  there  is  no  constitutional  restriction,  and  no  guaranty  for  its  just  exercise, 
except  in  the  discretion  of  the  legislature.  The  People  v.  Mayor  of  Brooklyn, 
4  Comst.  419;  Cincinnati,  W.  &  Z.  Railway  v.  Clinton  Co.  Comm.,  1  Ohio  (N. 
S.),  77. 

The  legislature  must  decide,  in  the  first  instance,  when  the  right  of  eminent 
domain  may  be  exercised,  but  this  is  subject  to  the  revision  of  the  courts,  so  far 
as  the  uses  to  which  the  property  is  applied,  are  concerned.    2  Kent,  Comm.  340. 

But  as  to  the  particular  instance,  the  decision  of  the  legislature,  and  of  the 
commissioners  appointed  to  exercise  the  power,  is  ordinarily  final  and  not  revis- 
able  in  the  courts  of  law.  Varrick  v.  Smith,  5  Paige,  137  ;  Armington  v.  Bar- 
net,  15  Vt.  745. 

And  the  legislature  may  restrain  the  owners  of  property,  in  regard  to  its  use, 
when  in  their  opinion  the  public  good   requires  it,  unless  with  compensation  to 
those  injured,  as  this  is  not  the  exercise  of  the' right  of  eminent  domain.     Com- 
monwealth v.  Tewksbury,  11  Met.  55;  Coatesr.  Mayor  of  New  York,  7  Cowen, 
I  lark  v.  Mayor  of  Syracuse,  13  Barb.  32. 

The  following  case  recognizes  the  general  right  stated  in  the  text.     Donnaher 
v.  The  State,  8  Sm.  &  M.  649. 
[*229] 


§  63.  GENERAL   PRINCIPLES.  247 

*  be  rather  a  necessary  attribute  of  the  sovereign  power  in  a  state, 
than  any  reserved  right  in  the  grant  of  property  to  the  subject  or 
citizen. 

4.  It  seems  to  have  been  accurately  denned,  and  distinctly 
recognized,  in  the  Roman  empire,  in  the  days  of  Augustus,  and  his 
immediate  successors,  although,  from  considerations  of  policy  and 
personal  influence  and  esteem,  they  did  not  always  choose  to  exer- 
cise the  right,  to  demolish  the  dwellings  of  the  inhabitants,  either 
in  the  construction  of  public  roads  or  aqueducts,  or  ornamental 
columns,  but  to  purchase  the  right  of  way. 

5.  But  in  the  states  of  Europe  and  in  the  written  Constitution 
of  the  United  States,  and  in  those  of  most  of  the  American  states, 
an  express  limitation  of  the  exercise  of  the  right  makes  it  depend- 
ent upon  compensation  to  the  owner.3  But  this  provision  in  the 
United  States  Constitution  is  intended  only  as  a  limitation  upon 
the  exercise  of  that  power,  by  the  government  of  the  United 
States.3 

6.  And  it  would  seem,  that  notwithstanding  this  right  of  sov- 
ereignty may  reside  in  the  United  States,  as  the  paramount  sov- 
ereign, so  far  as  the  territories  are  concerned,  in  reference  to 
internal  communication,  by  highways  and  railways,  and  notwith- 
standing the  ownership  of  the  soil  of  a  portion  of  the  lands,  by  the 
United  States,  in  many  of  the  states,  as  well  as  territories,  still, 
when  any  of  the  territories  are  admitted  into  the  Union,  as  inde- 
pendent states,  the  general  rights  of  eminent  domain  are  vested 
exclusively  in  the  state  sovereignty.4 

7.  The  duty  to  make  compensation  for  property,  taken  for  pub- 
lic use,  is  regarded,  by  the  most  enlightened  jurists,  as  founded  in 

3  Barron  v.  Baltimore,  7  Peters  (U.  S.),  243;  Fox  v.  The  State  of  Ohio, 
5  How.  (U.  S.),  410,  434,  435. 

4  Pollard  v.  Hagan,  3  How.  (U.  S.)  212  ;  Goodtitle  v.  Kibbe,  9  How.  471;  Doe 
v.  Beebe,  13  How.  25;  United  States  v.  Railw.  Bridge  Co.,  6  McLean,  517.  In 
the  Court  of  Claims,  in  the  case  of  The  Illinois  Central  Railway  v.  United 
States,  20  Law  Rep.  630,  it  was  held,  that  the  abandonment  of  a  military 
reserve,  which  had  become  useless  for  military  purposes,  causes  it  to  fall  back 
into  the  general  mass  of  public  lands,  and  that  a  state,  by  virtue  of  its  right  of 
eminent  domain,  may  authorize  the  construction  of  railways  through  land  owned 
but  not  occupied  by  the  United  States.  And  the  United  States  being  in  pos- 
session of  land  owned  by  the  plaintiffs,  and  which  was  necessary  to  carry  out  the 
objects  of  their  charter,  it  was  held,  that  a  payment  made  by  the  plaintiffs,  to 
obtain  possession  thereof,  was  made  under  duress,  and  might  be  recovered  back. 

[*230] 


248  EMINENT    DOMAIN.  PART  III. 

the  fundamental  principles  of  natural  right  and  justice,  and  as 
*  lying  at  the  basis  of  all  wise  and  just  government,  independent 
of  all  written  constitutions  or  positive  law.5 

B.  Bui  the  public  have  a  right,  by  the  legislature,  through  the 
proper  functionaries,  to  regulate  the  use  of  navigahle  waters,  and 
the  erect  inn  of  a  bridge,  with  or  without  a  draw,  by  the  authority 
of  the  Legislature,  is  the  regulation  of  a  public  right  and  not  the 
deprivation  of  a  private  right,  which  can  be  made  the  ground  of  an 
action,  even  where  private  loss  is  thereby  produced,  nor  is  it  the 
taking  of  private  property  for  public  use  which  will  entitle  the 
owner  to  compensation.6 

9.  And  where  a  ford-way  was  destroyed,  by  the  erection  of  a 
dam  across  a  river,  in  the  construction  of  a  canal,  or  other  public 
work,  under  legislative  grant,  the  river  being  a  public  highway, 
although  not  strictly  navigable,  in  the  common-law  sense;  (which 
only  included  such  rivers  as  were  affected  by  tide-water,)  it  was 
held  the  owner  of  the  ford-way  could  recover  no  compensation 
from  the  state,  or  their  grantees,  the  act  being  but  a  reasonable 
exercise  of  the  right  to  improve  the  navigation  of  the  stream,  as  a 
public  highway.7 

10.  Neither  can  the  owner  of  a  fishery,  which  sustains  damage 
or  destruction  by  the  building  of  a  dam  to  improve  the  navigation 
of  a  river  above  tide-water,  under  grant  from  the  state,  sustain  an 
action  against  the  grantees.8  So  also  in  regard  to  the  loss  of  the 
use  of  a  spring,  by  deepening  the  channel  of  such  a  stream,  by 
legislative  grant.9 

11.  Nor  is  the  owner  of  a  dam,  erected  by  legislative  grant 
upon  a  navigable  river,  and  which  was  afterwards  cut  off  by  a 
canal,  granted  by  the  same  authority,  entitled  .to  recover  damages.10 

nicer,  C.  J.,  in  Bradshaw  v.  Rodgers,  20  Johns.  103;  2  Kent,  Comm. 
339,  and  note,  and  cses  cited  from  the  leading  continental  jurists. 

'■  Davidson  v.  Boston  &  Maine  Railw.,  3  Cush.  91;  Gould  v.  Hudson  River 
Railw.,  12  Barb.  616;  s.  c.  2  Selden,  522.  Nor  have  the  state  any  such  right 
in  flats,  where  the  tide  ebbs  and  flows,  as  to  require  a  railway  company  to  pay 
them  damages  for  the  right  of  passage.  Walker  v.  Boston  &  Maine  Railw.,  3 
Cush.  1  ;  s.  c.  1  Am.  Railw.  C.  462. 

7  Zimmerman  v.  Union  Canal  Co.,  1  Watts  &  S.  346. 

B  Shrunk  r.  Schuylkill  Navigation  Co.,  14  Serg.  &  Rawle,  71. 

9  Commonwealth  v.  Ritcher,  1  Penn.  467. 

16  Susquehannah  Canal  Co.  v.  Wright,  9  Watts  &  Serg.  9;  Monongahela  Nav- 
igation Co.  v.  Coons,  6  id.  101. 

[*231] 


§64. 


TAKING   LANDS    IN    INVITUM. 


249 


♦SECTION    II. 


Talcing  Lands  in  invitum. 


1.  Legi  shit  ire  grant  requisite. 

2.  Compensation  must  be  made. 

3.  Consequential  damages. 

4.  Extent  of  such  liability. 

5.  These  grants  strictly  construed. 

6.  Limitation  of  the  power  to  take  lands. 


7.  Interference  of  courts  of  equity. 

8.  Rule  of  construction  in  American  courts. 

9.  Strict,  but  reasonable  construction. 

10.  Rights  acquired  by  company. 

11.  Limited  by  the  grant. 

12.  Decision  of  the  House  of  Lords. 


§64.  1.  In  England  railways  can  take  lands  by  compulsion, 
only  in  conformity  to  the  terms  of  their  charters,  and  the  general 
laws  defining  their  powers.1  And  in  this  country  a  railway  com- 
pany or  other  corporation  must  show,  not  only  the  express  warrant 
of  the  legislature2  (which  it  must  for  all  its  acts)  for  taking  the 
land  of  others  for  their  own  uses,  but  also  that  the  legislature,  in 
giving  such  warrant,  conformed  to  the  constitutions  of  the  states, 
in  most  of  which  it  is  expressly  required  that  compensation  should 
be  made  for  all  lands  taken.  And  upon  this  subject,  the  circum- 
spection of  the  English  courts,  in  requiring  damage  and  loss  to  the 
land-owners  to  be  fairly  met,  is  shown  very  fully  by  the  language 
of  Lord  Denman,  C.  J.,  in  The  Queen  v.  The  Eastern  Counties 
Railway.3 

• 

1  Taylor  v.  Clemson,  2  Q.  B.  978;  s.  c.  3  Railw.  C.  65.  Tindal,  C.  J.,  here 
said,  "  This  authority  to  take  land,  if  exercised  adversely,  and  not  by  consent,  is 
undoubtedly  an  authority  to  be  carried  into  effect,  by  means  unknown  to  the  com- 
mon law."  And  in  Barnard  v.  Wallis,  2  Railw.  C.  177,  the  Master  of  the  Rolls 
declares,  tbat  aside  from  the  provisions  of  the  act  of  parliament,  the  owner  of 
one  rod  of  land  may  insist  upon  his  own  terms,  to  the  utter  overthrow  of  the  most 
important  public  work.  "  The  price  of  his  consent  must  be  determined  by  him- 
self." All  kinds  of  property  and  estate  are  subject  to  this  right  of  eminent 
domain,  and  a  dwelling-house,  so  long  regarded  as  the  inviolable  sanctuary  of 
the  owner  or  occupant,  forms  no  exception.  Wells  v.  Som.  &  Ken.  Railw.  Co., 
47  Me.  345.  The  right  of  compensation  for  property  taken  by  virtue  of  the  right 
of  eminent  domain  is  regarded  as  a  fundamental  principle  of  the  common  law  6*f 
England  and  of  the  other  European  nations.  Pumpelly  v.  Green  Bay  Co.,  13  Wall. 
166. 

2  Hickok  v.  Plattsburgh,  15  Barb.  435 ;  4  Barb.  127 ;  Halstead  v.  Mayor, 
&c,  of  New  York,  3  Comst.  430;  Hart  v.  Mayor  of  Albany,  9  Wend.  571,  588; 
2  Denio,  110;  Dunham  v.  Trustees  of  Rochester,  5  Cowen,  462. 

3  2  Q.  B.  347  ;  s.  c.  2  Railw.  C.  736,  752.  It  has  been  repeatedly  decided  that 
the  corporate  authorities  of  a  city  have  no  power  to  confer  upon  any  person, 

[*232] 


260  EMINENT  DOMAIN.  PART  III. 

•  •_.  ••  We  think  it  not  unfit  to  premise,  that  when  such  largo 
powers  are  intrusted  to  a  company  to  carry  their  works  into  exe- 
cution. \s  iili«»iit  the  consent  of  the  owners  and  occupiers  of  the 
land,  it  is  reasonable  and  just  that  any  injury  to  property  which 
can  be  shown  to  arise  from  the  prosecution  of  those  works  should 
be  fairly  compensated  for  to  the  party  sustaining  it." 

3.  In  the  English  statute,  too,  railway  companies  are  made  lia- 
ble to  pay  damage  to  the  owner  of  all  lands  "  injuriously  affected" 
by  any  of  their  works.  Such  a  provision  does  not  exist  in  many 
of  the  American  states,  and  consequently  no  liability  is  imposed 
for  merely  consequential  damages  to  lands,  no  part  of  which  is 
taken.4 

4.  Under  the  English  statute,  giving  damage  where  lands  are 
"  injuriously  affected,"  railways  have  been  held  liable  for  all  acts, 
which,  if  done  without  legislative  grant,  would  constitute  a 
nuisance,  and  by  which  a  particular  party  incurs  special  dam- 
age.5 

5.  These  grants,  being  in  derogation  of  common  right,  are  to 
receive  a  reasonably  strict  and  guarded  construction.6  The  Mas- 
natural  or  corporate,  the  franchise  of  operating  a  railway.  Such  a  grant  for  an 
indefinite  period  is  void  as  a  perpetuity.  Such  powers  are  held  by  the  city  for  the 
publii  1"  aefit,  and  cannot  be  abrogated  or  delegated.  And  such  a  grant  is  not  an 
act  of  municipal  legislation  merely,  but  a  contract  which,  if  valid,  it  could  not 
revoke  or  limit,  and  which  is  consequently  void  as  a  perpetuity.  Milhau  v. 
Sharp,  27  X.  Y.  611 ;  j^st,  §  76. 

*  Hatch  v.  Vermont  Central  Railw.,  25  Vt.  49;  Philadelphia  &  Trenton 
Kailw.,  6  Whart.  25;  Monongahela  Nav.  Co.  v.  Coon,  6  Watts  &  Serg.  101. 
See  also  Protzman  v.  Ind.  &  Cin.  Railw.,  9  Ind.  467  ;  Evansville  &  Crawfords- 
villc  Kailw.  v.  Dick,  id.  433.  But  the  full  extent  of  the  doctrine  in  the  text 
seen^  to  be  questioned  or  doubted  in  Pumpelly  v.  Green  Bay  Co.,  13  Wall.  166. 

&  Queen  v.  Eastern  Co.'s  Railw.,  2  Q.  B.  347  ;  Glover  r.  North  Staffordshire 
Kailw.,  16  Q.  B.  912;  s.  c.  5  Eng.  L.  &  Eq.  335.  The  English  rule  of  com- 
pensation  seems  to  be  to  estimate  what  the  land-owner  will  lose  rather  than  what 
the  company  will  gain.  Stebbing  r.  The  Met.  lid.  of  Works,  L.  R.  6  Q.  B.  37. 
ay  o.  Liverpool  &  Bury  Railw.,  9  Beav.  391  ;  s.  c.  4  Railw.  C.  235-240. 
II.  ace  under  a  general  grant  of  power  to  take  laud  for  the  track  of  a  railway, 
with  sidings  and  branches  to  the  towns  along  the  line,  the  company  have  no 
power  t<>  take  land  for  a  temporary  track  during  the  period  of  constructing  the 
main  line.  (  urri<  r  v.  Marietta  &  Cin.  Railw.  Co.,  1 1  Ohio  (N.  S.),  228.  Nor 
can  a  railway  company,  under  their  general  powers,  take  lands  at  a  distance 
from  their  line  not  intended  to  be  used  in  its  construction.  Waldo  v.  Chicago, 
St  Paul,  &  Fond  du  Lac  Kailw.  <  !o.,  1  1  Wis.  575.  Nor  can  a  railway  company 
land  compulsorily  for  the  purpose  of  erecting  a  manufactory  of  railway  cars, 
or  dwellings  to  be  rented  to  the  employes  of  the  company.     But  they  may  take 

[*233] 


§  64.  TAKING   LANDS   IN   INVITUM.  251 

ter  *  of  the  Rolls,  in  this  last  case,  says,  "  In  these  cases  it  is  always 
to  be  borne  in  mind,  that  the  acts  of  parliament  are  acts  of  sover- 
eign and  imperial  power,  operating  in  the  most  harsh  shape  in 
which  that  power  can  be  applied  in  civil  matters,  —  solicited,  as 
they  are,  by  individuals,  for  the  purpose  of  private  speculation  and 
individual  benefit."  And  in  another  case  7  the  rule  of  construc- 
tion is  thus  laid  down  :  — 

6.  "  These  powers  extend  no  further  than  expressly  stated  in 
the  act,  except  where  they  are  necessarily  and  properly  acquired 
for  the  purposes  which  the  act  has  sanctioned."  This  last  cate- 
gory, as  here  observed,  is  often  a  most  perplexing  one,  in  regard 
to  its  true  extent  and  just  limits.  And  doubtful  grants  are  to  be 
construed  most  favorably  towards  those  who  seek  to  defend  their 
property  from  invasion.8  And  a  railway,  having  an  option  between 
different  routes,  can  only  take  lands  on  that  route  which  they 
ultimately  adopt ;  and  if  they  contract  for  land  upon  the  other 
routes,  cannot  be  compelled  to  take  it.9  The  time  for  exercise  of 
these  compulsory  powers,  by  the  English  statutes,  is  limited  to 
three  years,10  except  for  improvements  necessary  for  the  public 
safety,  in  conformity  with  the  certificate  of  the  Board  of  Trade. 

land  for  the  purpose  of  storing  wood  and  lumber  used  on  the  road,  or  brought 
there  for  transportation  upon  it.  And  when  land  is  taken  for  a  legitimate  pur- 
pose, the  decision  of  the  locating  officers  of  the  company  is  conclusive  as  to  the 
extent  required  for  that  purpose,  unless  the  quantity  so  taken  is  clearly  beyond 
any  just  necessity.     Vt.  &  Canada  R.  v.  Vt.  Cent.  R.,  34  Vt.  2. 

7  Colman  v.  The  Eastern  Counties  Railw.,  10  Beav.  1 ;  s.  c.  4  Railw.  C.  513, 
524;  State  v.  B.  &  O.  Railw.,  6  Gill,  3G3 ;  Simpson  v.  So.  Staff.  Waterworks 
Co.,  11  Jur.  (N.  S.)  453.  And  in  a  case  in  Kentucky,  the  rule  is  thus  stated: 
The  rules  of  construction  which  apply  to  charters  delegating  sovereign  power 
to  corporations  do  not  depend  upon  the  question  whether  the  corporation 
is  a  private  or  a  public  one,  but  on  the  character  of  the  powers  conferred,  and 
the  purposes  of  the  organization.  The  power  of  a  railway,  or  other  private  cor- 
poration, to  take  private  property  for  its  use,  being  a  delegation  of  sovereign 
power  must  be  construed  as  it  would  be  if  delegated  to  a  municipal  corporation. 
And  the  powers  of  private  and  public  corporations,  with  respect  to  their  property, 
are  governed  by  the  same  principles,  and,  in  the  absence  of  express  provisions  of 
law,  depend  upon  the  purposes  for  which  the  corporation  was  formed.  Bardstown 
&  Lou.  R.  R.  Co.  v.  Metcalfe,  4  Met.  (Ky.)  199. 

8  Sparrow  v.  Oxford,  W.  &  W.  Railw.,  9  Hare,  436 ;  s.  c.  12  Eng.  L.  &  Eq. 
249  ;  Shelford  on  Railways,  233. 

9  Tomlinson  v.  Man.  &  Birm.  Railw.,  2  Railw.  C.  104;  Webb  v.  Man.  & 
Leeds  Railw.,  1  Railw.  C.  576. 

10  Such  a  limitation  is  held  obligatory  wherever  it  exists.  Peavey  v.  Calais 
Railw.,  30  Maine,  498  ;  s.  c.  1  Am.  Railw.  C.  147. 

[*234] 


EMINENT    DOMAIN.  PART  III. 

It  was  decided  by  the  House  of  Lords,  reversing  the  judgment 
of  the  Lords  Justices,  but  affirming  that  of  the  Vice-Chancellor, 
that  where  the  legislature  authorizes  a  railway  company  to  take, 
for  their  purposes,  any  lands  described  in  their  act,  it  constitutes 
*  them  tin1  Bole  judges  as  to  whether  they  will  or  will  not  take  those 
lands,  provided  that  they  take  them  bona  fide  with  the  purpose  of 
using  them  fur  the  purposes  authorized  by  the  legislature,  and  not 
I'm-  any  sinister  or  collateral  purpose.11  And  that  a  court  of  equity 
cannot  interfere,  even  upon  the  decision  of  an  engineer,  to  curtail 
the  power  of'the  company,  in  regard  to  the  quantity  of  land  sought 
obtained  by  it,  so  long  as  it  acts  in  good  faith.  But  in  a 
later  ease  '-  it  was  said  that  the  House  of  Lords,  in  the  case  of 
Stockton  &  Co.  v.  Brown,  did  not  decide  that  the  company,  by  its 
engineer,  had  an  unlimited  discretion  to  take  any  land  which  the 
engineer  would  make  affidavit  the  company  required  for  use  in  the 
construction  of  their  works,  without  stating  what  works;  but  that 
it  must  appear  to  what  use  they  proposed  to  put  the  lands,  and  if 
that  came  fairly  within  the  range  of  their  powers,  the  company 
could  not  be  controlled  in  the  bona  fide  exercise  of  its  discretion  as 
to  the  mode  of  constructing  their  works,  w7ithin  the  powers  con- 
fided to  them  by  the  legislature.  The  company  will  not  be  re- 
strained from  taking  land  for  the  purpose  of  depositing  waste 
upon,  although  not  confident  of  requiring  it  for  any  other  purpose 
connected  with  the  construction.13 

7.  Asa  general  rule  in  the  English  courts  of  equity,  if  the  con- 
struction of  a  railway  charter  be  doubtful,  they  will  remit  the 
party  to  a  court  of  law  to  settle  the  right,  in  the  mean  time  so  ex- 
ercising  the  power  of  granting  temporary  injunctions  as  will  best 
conduce  to  the  preservation  of  the  ultimate  interests  of  all  parties.14 

8.  Similar  rules  of  construction  have  prevailed  in  the  courts  of 
this  country.  The  language  of  C.  J.  Taney,  in  the  leading  case 
upon  this  subject,  in  the  national  tribunal  of  last  resort,  is  very 

"  Stockton  &  Darlington  Railw.  Co.  v.  Brown,  6  Jur.  (N.  S.)  1168;  s.  c.  9 
II  ■  '•  C.  246;  North  Missouri  Railw.  v.  Lackland,  25  Mo.  515;  Same  v.  Gott, 
id.  540. 

-  1  lower  v.  London  Br.  &  S.  Coast  Railw.  Co.,  2  Drew.  &  Sm.  330;  s.  c. 
11  Jnr    (N.  S.)  W6. 

ia  Lund  r.  Midland  Railw.  Co.,  34  L.  J.  Cb.  276. 

»  Clarence  Railw.  p.  Great  North  of  England,  C.  &  H.  J.  Railw.,  2  Railw. 
But  the  practice  of  courts  of  equity,  in  this  respect,  is  by  no  means 
uniform.      Si  e  post,  chap.  xxix. 

[•235] 


§  64.  TAKING   LANDS   IN   INVITUM.  253 

explicit  "  It  would  present  a  singular  spectacle,  if,  while  the 
courts  of  England  are  restraining  within  the  strictest  limits  the 
spirit  of  monopoly  and  exclusive  privilege  in  nature  of  monopoly, 
and  confining  corporations  to  the  privileges  plainly  given  to  them 
in  their  charter,  the  courts  of  this  country  should  be  found  enlarg- 
ing *  these  privileges  by  implication."  15  And  in  commenting  upon 
the  former  decisions  of  that  court,  upon  this  subject,  the  same 
learned  judge  here  says,  "The  principle  is  recognized,  that  in 
grants  by  the  public  nothing  passes  by  implication."  10  And  other 
cases  are  here  referred  to  in  the  same  court,  in  support  of  the  same 
view.17 

9.  But  it  is  not  to  be  inferred  that  the  courts  in  this  country,  or 
in  England,  intend  to  disregard  the  general  scope  and  purpose  of 
the  grant,  or  reasonable  implications,  resulting  from  attending 
circumstances.  But  if  doubts  still  remain,  they  are  to  be  solved 
against  the  powers  claimed.18 

10.  But  where  the  right  of  the  company  to  appropriate  the 
land  is  perfected  under  the  statute,  they  may  enter  upon  it  with- 
out any  process  for  that  purpose,  and  the  resistance  of  the  owner 
is  unlawful,  and  he  may  be  restrained  by  injunction,  but  that  is 
unnecessary.     The  statute  is  a  warrant  to  the  company.19 

15  Charles  River  Bridge  v.  Warren  Bridge,  11  Pet.  420. 

16  U.  S.  v.  Arredondo,  6  Pet.  691,  738. 

17  Jackson  v.  Lamphire,  3  Pet.  280;  Beaty  v.  Knowler,  4  Pet.  152,  168; 
Providence  Bank  v.  Billings  &  Pittman,  4  Pet.  514.  And  that  court  not  only 
adheres  to  the  same  view  still,  but  may  have  carried  it,  in  some  instances,  to  the 
extreme  of  excluding  all  implied  powers.  See  also,  upon  this  subject,  Common- 
wealth v:  Erie  &  Northeast  Railw.,  27  Penn.  St.  339  ;  and  Bradley  v.  New  York 
&  New  Haven  Railw.,  21  Conn.  294. 

18  Perrine  v.  Ches.  &  Del.  Canal  Co.,  9  How.  172;  Enfield  Toll-Bridge  v. 
Hartford  &  N.  H.  Railw.,  17  Conn.  454;  Springfield  v.  Conn.  River  Railw.,  4 
Cush.  63;  30  Maine,  498;  9  Met.  553;  1  Zab.  442;  3  Zab.  510;  21  Penn.  St. 
9 ;  15  111.  20.  The  following  cases  will  be  found  to  confirm  the  general  views  of 
the  text:  Tuckahoe  Canal  Co.  v.  Tuckahoe  Railw.,  11  Leigh,  42;  Greenleaf's 
Cruise,  vol.  2,  67,  68;  Thompson  v.  N.  Y.  &  H.  Railw.,  3  Sandf.  Ch.  625; 
Oswego  Falls  Bridge  Co.  v.  Fish,  1  Barb.  Ch.  547;  Moorhead  v.  Little  Miami 
Railw.,  17  Ohio,  340;  Stormfeltz  v.  Manor  Turnpike  Co.,  13  Penn.  St.  555; 
Toledo  Bank  v.  Bond,  1  Ohio  (N.  S.),  636;  Cincinnati  Coll.  v.  State,  17  Ohio, 
110 ;  Cam.  &  Aniboy  R.  v.  Briggs,  2  Zab.  623 ;  Carr  v.  Georgia  Railw.  &  Bank- 
ing Co.,  1  Kelly,  524;  7  Ga.  221;  New  London  v.  Brainard,  22  Conn.  552; 
Bradley  v.  N.  Y.  &  N.  H.  Railw.,  21  Conn.  294 ;  9  Ga.  475  ;  Barrett  v.  Stockton 
&  D.  Railw.,  2  M.  &  G.  134. 

,9  Niagara  Falls  &  Lake  Ontario  Railw.  v.  Hotchkiss,  16  Barb.  270. 

[*236] 


25  1  EMINENT    DOMAIN.  PART  III. 

1 1 .  Bui  a  grant  to  a  railway  to  carry  passengers  and  merchan- 
i,  A.  to  M..  does  not  authorize  them  to  transport  merchan- 
Mii  their  depot  in  the  city  of  M.  about  the  city,  or  to  other 
points,  For  the  accommodation  of  customers.20 

I_.  There  lias  been  considerable  discussion  in  the  English 
•courts,  within  the  last  few  years,  in  regard  to  many  recent 
statutes  there,  for  the  improvement  of  markets  and  streets  in  the 
metropolis  or  districts  adjoining,  through  the  agency  of  the 
municipal  corporations.  And  while  the  courts  there,  and  espe- 
cially the  House  of  Lords,  in  one  case,21  adhere  strenuously  to  the 
former  rule,  in  regard  to  private  corporations,  that  they  can  only 
take  lands  compulsorily,  for  the  needful  purposes  of  the  works 
which  they  are  authorized  by  the  legislature  to  construct;  on  the 
other  hand,  they  hold  that  it  is  competent  and  proper  under  parlia- 
mentary powers  granted  for  that  purpose,  to  allow  municipal  cor- 
porations to  reimburse  the  expense  of  any  improvements  which 
they  are  authorized  to  carry  forward,  in  their  streets  and  squares 
or  markets,  by  taking  the  lands  adjoining  such  improvements,  at 
the  price  of  their  value  before  such  improvements,  and  selling  them 
at  the  advanced  prices  caused  by  such  improvements.  And  it  was 
held  that  the  municipality  having,  before  the  act  passed,  contracted 
for  the  sale  of  such  of  the  lands  so  to  be  taken  as  they  should  not 
require  for  the  purpose  of  the  public  improvement,  did  not  dis- 
qualify them  from  exercising  the  discretion  reposed  in  them  by  the 
act.  as  to  how  much  land  they  would  take.     This  rule  of  law  in 

.  1  to  the  proper  mode  of  reimbursing  the  expense  of  great 
public  improvements  is  not  very  different  from  that  which  has  been 
extensively  in  use  in  America  under  the  name  of  betterment  acts, 
whereby  the  expense  is  assessed  upon  the  adjoining  property- 
owners,  upon  some  scheme  of  equalization,  presumptively  appor- 
tioning the  loss  and  benefit  equitably.22 

5    M  i     n  r.  Macon  &  W.-stern  Railw.,  7  Ga.  221. 

n  Galloway  v.  The  Mayor  &  Commonalty  of  London  and  the  Metropolitan 
Railw.  Co.,  et  vice  versa,  12  Jur.  (N.  S.)  747.     (1866.)     s.  c.  Law  Rep.  1  H. 

"  Post,  §  235,  and  cases  cited  in  n.  22,  23. 

[*237] 


§65. 


CONDITIONS   PRECEDENT. 


255 


SECTION     III. 


Conditions  Precedent. 


1.  Conditions  precedent  must  be  complied  with. 

2.  That  must  be  alleged  in  petition. 

3.  When  title  vests  in  company. 

4.  Filing  the  location  in  the  land  office  is  no- 

tice to  subsequent  purchasers. 

5.  After  damages  are  assessed  and  confirmed 


by  the  court  the  owner  is  entitled  to  exe- 
cution. 

6.  If  the  company  use  the  land. 

7.  Subscriptions  payable  in  land  without  com- 

pensation, a  court  of  equity  will  enforce 
payment. 


§65.  1.  It  has  been  held  that  a  railway  company  must  comply 
with  all  the  conditions  in  its  charter,  or  the  general  laws  of  the 
*  state,  requisite  to  enable  it  to  go  forward  in  its  construction,  before 
it  acquires  any  right  to  take  land  by  compulsion.  In  England  one 
of  these  conditions  in  the  general  law  is,  that  stock,  to  the  amount 
of  the  estimated  cost  of  the  entire  work,  shall  be  subscribed.  And 
where  the  charter,  or  the  general  laws  of  the  state  gave  the  right 
to  take  land  for  the  road-way  only  upon  the  legislature  having 
approved  of  the  route  and  termini  of  the  line,  it  was  held  the  com- 
pany could  not  proceed  to  condemn  lands  for  that  purpose  until 
this  approval  was  made.1 

2.  And  where  the  act  of  the  legislature,  under  which  a  railway 
was  empowered  to  take  lands,  required  the  company  to  apply  to 
the  owner,  and  endeavor  to  agree  with  him  as  to  the  compensa- 
tion, unless  the  owner  be  absent  or  legally  incapacitated,  they  have 
no  right  to  petition  for  viewers  until  that  is  done.2  The  petition 
should  allege  the  fact  that  they  cannot  agree  with  the  owner.2 

The  right  of  such  companies  to  take  land  is  held  in  some  states 
to  depend  upon  the  legal  sufficiency  and  validity  of  the  certificate 
and  public  record  of  organization ;  and  it  was  held  the  company 

1  Gillinwater  v.  The  Mississippi  &  A.  Railw.  Co.,  13  111.  1. 

*  Reitenbaugh  v.  Chester  Valley  Railw.,  21  Perm.  St.  100.  But  where  the 
company  have  the  right  to  lay  their  road,  not  exceeding  six  rods  in  width,  and 
have  fixed  the  centre  line  of  the  same,  they  may  apply  for  the  appointment  of 
appraisers,  and  determine  the  width  of  the  road,  any  time  before  the  appraisal. 
Williams  v.  Hartford  &  New  Haven  Railw.,  13  Conn.  110.  But  slight,  if  indeed 
any,  evidence  of  this  failure  to  agree  with  the  land-owner  is  required,  where  the 
claimant  appears  and  makes  no  objection  on  that  ground.  Doughty  v.  Somerville 
&  Eastern  Railw.,  1  Zab.  442.  And  the  petition  maybe  amended  where  this 
averment  is  omitted.     Pennsylvania  Railw.  v.  Porter,  29  Penn.  St.  165. 

[*238] 


EMINENT    DOMAIN.  PART  IB. 

must  show  these  prerequisites  to  be  strictly  in  conformity  with  the 
requirements  of  the  law.3 

."..  Where  the  charter  of  a  railway  company  provides  that  the 
title  of  land  condemned  for  the  use  of  the  company  shall  vest  in 
the  company,  upon  the  payment  of  the  amount  of  the  valuation, 
no  title  vesta  until  such  payment.4  In  a  late  case,5  the  law  upon 
*  this  subject  is  thus  summed  up  :  Where  the  charter  of  the  com- 
pany provides,  that  after  the  appraisal  of  land,  for  their  use,  "  upon 
lyment  of  the  same"  or  deposit,  (as  the  case  may  be,)  the 
company  shall  be  deemed  to  be  seized  and  possessed  of  all  such 
lands,  "  they  must  pay  or  deposit  the  money  before  any  such  right 
accrues."  —  "  The  payment  or  deposit  of  the  money  awarded  is  a 
condition  precedent  to  the  right  of  the  company  to  enter  upon  the 
land  for  the  purposes  of  construction  ;  and  without  compliance  with 
it  they  may  be  enjoined  by  a  court  of  equity,  or  prosecuted  in  tres- 
pass at  law,  for  so  doing.  The  right  of  the  land-owner  to  the 
damages  awarded  is  a  correlative  right  to  that  of  the  company  to 
the  land.  If  the  company  has  no  vested  right  to  the  land,  the 
land-owner  has  none  to  the  price  to  be  paid." 

1.  And  where  the  charter  contained  the  usual  power  to  take 
land,  it  was  held,  that  after  laying  out  their  road  and  filing  the 
location  in  the  land-office,  the  company  had  acquired  a  right  of 
entry,  which  subsequent  purchasers  were  bound  to  respect.6 

5.  And  where  the  road  has  been  laid  and  the  damages  assessed, 
andj  confirmed  by  the  court,  the  owner  of  the  land  is  entitled  to 
execution,  although  the  company  have  not  taken  possession  of  the 
land,  and  may  desire  to  change  the  route.7 

6.  But  where  the  railway  enter  into  the  possession  of  the  land, 
and  construct  their  road  without  having  paid  the  whole  of  the 
damages  assessed  therefor,  a  court  of  equity  will  enforce  the  pay- 

Railw.  v.  Sullivant,  5  Ohio  (N.  S.),  276. 

1  Baltimore  &  Susquehanna  Railw.  v.  Nesbit,  10  How.  (IT.  S.)   395.     See 

'     mpton  v.  Susquehanna  Railw.,  3  Bland,  386,  391 ;  Van  Wicfcle  v.  Railw., 

icy  r.  Vermont  Central  Railw.,  27  Vt.  39  ;  Levering  v.  Railw. 

'  I.     And   upon  payment  of  the  compensation  assessed 

missioners,  and  taking  possession  afterward,  the  title  of  the  company  is 

linst  the  party  to  the  proceedings.     Bath  River  Navigation  Co. 

r.  Wii  is,  2  Eta  Iw.  C.  7. 

ntral  Railw.,  27  Vt.  39. 
•  Davii  v.  E.  T.  &  Ga.  Railw..  1  Sneed,  9-4. 

onnelsville  Railw.,  31  Penn.  St.  19. 

[*2i 


§  65.  CONDITIONS   PRECEDENT.  257 

ment  by  an  order  for  such  payment  within  a  time  named,  and  in 
default  will  restrain  the  company  by  injunction  from  using  the 
land  until  the  price  is  paid.8  In  one  case  it  was  held,  that  where 
the  railway  is  surveyed  and  located  and  the  land-owner  consents 
to  the  company  entering  and  building  their  road  before  the 
damages  are  ascertained,  under  an  agreement  that  this  shall  be 
done  thereafter,  and  the  road  is  thereupon  constructed,  the  title 
to  the  land  passes,  and  the  owner  retains  no  lien  thereon  for  his 
damages,  but  must  look  for  payment  to  the  party  contracting.9 
But  in  an  English  case,10  it  was  held  that  the  owner  of  lands 
*  taken  possession  of  by  a  railway  company,  either  under  statutory 
power  or  by  agreement,  has  a  lien  thereon  for  the  purchase-money 
and  also  for  the  damages  to  the  adjoining  land,  if  not  the  subject 
of  a  special  agreement,  inconsistent  with  the  continuance  of  such 
lien.  Of  this  lien  he  is  not  deprived  by  a  deposit  and  bond  under 
the  statute,  or  by  accepting  a  deposit,  less  than  the  whole  amount 
due  him,  and  a  court  of  equity  will  enforce  this  lien,  although  the 
railway  has  been  opened  for  public  use. 

7.  And  where  a  subscription  of  land  is  made  to  a  railway  com- 
pany, upon  some  condition  precedent  to  be  performed  by  the 
company,  such  condition  is  waived  by  conveying  the  land  and 
accepting  certificates  of  stock.  But  if  such  conveyance  is  induced 
by  false  representations,  the  company  may  be  compelled  to  per- 
form it,  or  by  tendering  a  return  of  the  certificates  the  entire  con- 
veyance may  be  set  aside,  even  after  the  company  have  conveyed 
the  land  to  others  connusant  of  the  facts  at  the  time  of  such  con- 
veyance.8 

8  Cozens  v.  Bognor  Railw.,  Law  Rep.  1  Ch.  App.  594;  s.  c.  12  Jur.  (N.  S.) 
738. 

9  Knapp  v.  McAuley,  39  Vt.  275.  But  in  this  state  the  vendor's  lien  upon  real 
estate  for  the  price  is  expressly  repealed  by  act  of  the  legislature. 

10  Walker  v.  Ware,  &c.  Railw.,  Law  Rep.  1  Eq.  195. 


17  [*240] 


258 


EMINENT   DOMAIN. 


PART  III, 


SEC  T  ION    IV. 


Prelim  inary   Surveys. 


1.  .1/  without  compt  nsation. 

!S<  r. 

;;.  /       irAal  purposes  company  may  enter 

amis. 


4.   Company  liable  for  materials. 
6.  /.'/',■/</  to  /"/'  materials. 
6,  7.  Location  of  survey. 


§  66.  1.  It  is  settled  that  the  legislature  may  authorize  railway 
companies  to  enter  upon  lands  for  the  purpose  of  preliminary 
surveys,  without  making  compensation  therefor,  doing  as  little 
damage  as  possible,  and  selecting  such  season  of  the  year  as  will 
do  least  damage  to  the  growing  crops.  The  proper  rule  to  be 
observed,  in  this  respect,  being  such  as  a  prudent  owner  of  the 
Land  would  be  likely  to  adopt,  in  making  such  surveys  for  his  own 
advantage.1 

2.  In  the  English  statutes,  and  in  many  of  the  special  charters 
and  general  railway  acts  in  the  American  states,  the  company  are 
bound  to  make  compensation  for  such  temporary  use  of  the  land, 
•  where  they  do  not  ultimately  take  the  land.  But  in  such  case, 
where  the  statute  authorizes  the  entry  upon  the  land,  the  company 
are  not  to  be  treated  as  trespassers,  and  even  where  the  statute 
provides  for  no  compensation,  it  is  not  regarded  as  taking  private 
property  for  public  use,  within  the  provisions  of  the  American  state 
and  United  States  constitutions. 

3.  Under  the  English  statute  the  notice  to  use  lands  for  tempo- 
ral y  purposes  should  specify  the  particular  purpose  for  which  the 
lands  are  required.2  By  the  English  statute,3  the  company  may 
make  a  temporary  entry  upon  land  for  the  following  purposes:  — 

1st.   For  the  purpose  of  taking  earth,  or  soil,  by  side  cuttings. 
2d.   For  the  purpose  of  depositing  spoil. 

3d.  For  the  purpose  of  obtaining  materials  for  the  construction 
or  repair  of  the  railway. 

Smith,  oi  Maine,  247;  Polly  v.  S.  &  W.  Railw.  Co.,  9  Barb. 

449;  Bloodg I  v.  Mohawk  &H.  Railw.  Co.,  14  Wend.  51;  s.  c.  18  Wend.  9; 

B.  0.  1  Redf.  Am.  Railw.  Cases,  209;  Mercer  v.  McWilliams,  Wright  (Ohio), 
L32.  But  in  Borne  states  the  party  is  made  liable  by  statute  for  damages  for  tem- 
porary occupation. 

1  Poynder  o.  The  Great  N.  Railw.  Co.,  16  Sim.  3;  s.  c.  5  Railw.  C.  196. 
i  9  Vict.  ch.  20,  §  32. 

[•241] 


§  66.  PRELIMINARY   SURVEYS.  259 

4th.  For  the  purpose  of  forming  roads  to,  from,  or  by  the  side  of 
the  railway.4 

5th.  By  section  42,  if  the  owner  of  such  lands,  as  the  company 
give  notice  of  temporary  occupation,  elect  to  sell  to  the  company 
and  give  them  notice  accordingly,  they  are  compellable  to  buy, 
and  in  all  other  cases  to  make  compensation  for  all  injury  to  the 
same. 

4.  It  has  been  held,  in  regard  to  the  right  of  railway  companies 
to  take  materials  from  lands  adjoining  their  survey  to  build  their 
road,5  that  the  damages  need  not  be  appraised  till  after  the  mate- 
rials were  taken :  That  the  commissioners  had  authority  to  assess 
damages  for  every  act  which  the  company  might  lawfully  do  under 
their  charter :  that  the  company  had  the  right  to  take  such  materi- 
als, in  invitum,  and  to  use  other  land,  without  their  survey,  for 
*  preparing  stone  for  their  use  :  that  the  same  right  equally  resided 
in  the  contractors  to  build  the  road  :  and  that  the  corporation  is 
liable  to  the  land-owner  for  materials  so  taken  by  the  contractors, 
notwithstanding  any  stipulations  in  the  contract  of  letting  exempt- 
ing them  from  such  liability,  as  between  themselves  and  the  con- 
tractors. 

5.  It  has  sometimes  been  made  a  question,  in  this  country,  how 
far  the  legislature  could  confer  upon  railway  companies  the  power 
to  take  materials,  without  the  limits  of  their  survey  in  invitum.5 
And  in  a  somewhat  recent  case,6  where  the  charter  of  the  company 
authorized  them  to  take  land,  so  much  as  might  be  necessary  for 
their  use,  and  also  to  take  for  certain  purposes  earth,  gravel,  stone, 
timber,  or  other  materials,  on  or  from  the  land  so  taken,  it  was  held 
the  company  were  not  thereby  empowered  to  take  materials  from 
land  not  taken. 

4  In  Webb  v.  The  Manchester  &  Leeds  Railw.  Co.,  4  Myl.  &  Cr.  116  ;  s.  c. 
1  Railw.  C.  576,  599,  Lord  Cottenham,  Ch.,  is  reported  to  have  said:  "The 
powers  given  to  these  companies  are  so  large,  and  frequently  so  injurious  to  the 
interests  of  individuals,  that  I  think  it  is  the  duty  of  every  court  to  keep  them 
most  strictly  within  those  powers,  and  if  there  is  any  reasonable  doubt  as  to  the 
extent  of  their  powers,  they  must  go  elsewhere  and  get  enlarged  powers,  but 
they  will  get  none  from  me,  by  way  of  construction  of  the  act.1' 

5  Vermont  Central  Railw.  v.  Baxter,  22  Vt.  365.  See  also  Bliss  v.  Hosmer, 
15  Ohio,  44;  Lyon  v.  Jerome,  15  Wendell,  569;  Wheelock  v.  Young  &  Pratt, 
4  Wendell,  647.  Also  Lesher  v.  The  Wabash  Nav.  Co.,  14  Illinois,  85.  See 
post,  §  68. 

6  Parsons  v.  Howe,  41  Me.  218.  And  under  the  English  statute  it  has  been 
held  that  the  company  are  not  justified  in  taking  land  compulsorily,  which  is 

[*242] 


EMINENT   DOMAIN.  PART  III. 

6.  But  a  railway  company,  who  enter  upon  land  to  construct 
their  road  before  the  time  for  filing  the  location  of  their  line,  are 
liable  as  trespassers,  if  the  location  when  filed  does  not  cover  the 
land  -  i  upon." 

7.  And  the  onua  is  upon  the  company  to  justify  by  showing  that 
the  land  is  covered  by  the  authorized  location.7  The  location  filed 
by  the  company  is  conclusive  evidence  of  the  land  taken  and  can- 
nut  be  inn  trolled  by  extrinsic  evidence,  though  a  plan  or  map, 
made  a  part  of  the  description  of  the  location,  and  filed  with  the 
written  location,  may  be  referred  to  for  explanation,  but  not  to 
modify  or  control  the  written  location.7 


♦SECTION    V. 

temporary  Possession  of  Public  and  Private  Ways. 

railway  company  may  take  possession     3.  Party    excavating   highway    in    building 

of  public  or  private   ways,  in  building  sewer  and  having  restored  it,  no  further 

their  works.     Responsibility.  responsible. 
2.   /.'                        the  statutes,  unless  special 

dun, 


§67.  1.  Under  the  English  statute,1  the  company  have  the 
power  upon  notice,  to  take  temporary  possession  of  private  roads; 
and  by  other  sections,  they  may  take  possession  of,  cut  through, 
and  interrupt  public  roads.  But  in  all  such  cases  the  damage  is 
to  be  compensated,  and  the  road  restored,  when  practicable,  and,  if 
not.  a  substituted  one  made. 

2.  If  a  private  way  be  obstructed,  the  remedy  is  to  sue  for  pen- 
alty under  the  statute  ;  or  to  bring  an  action  under  the  statute  for 
ial  damage.  But  it  is  said  an  action  upon  the  case  for  the 
obstruction  cannot  be  maintained,  except  in  the  case  of  special 
damage,  which  is  expressly  saved  by  the  statute.2 

red,  not  for  the  purpose  of  constructing  any  portion  of  tbe  works  upon  it, 
but  to  Bupply  earth  or  other  material  to  be  used  upon  other  land.     Bentinck  v. 
■  lary  <  o.,  8  De  Gr.,  M.  &  G.  714. 
r  JI  ■'•  '■  '     '  he  Boston  &  Maine  Railw.,  2  Gray,  574;  Stone  v.  Cambridge,  6 
;  H  .  Shackford,  3  N.  H.  10;  Lewiston  v.  County  Commissioners, 

:  Little  r.  Newport,  A.  &  II.  Railw.,  12  C.  B.  752;  s.  c.  14  Eng. 
Springfield  v.  Conn.  River  Railw.,  4  Cush.  63,  69,  70. 
■  9  Vict.  c.  20,  §  30. 
una  r.  Great  Northern  Railw.  Co.,  16  Q.  B.  961;  s.  c.  6  Eng.  L.  & 
[•243] 


§68. 


LAND  FOR  ORDINARY  AND  EXTRAORDINARY  USES. 


261 


3.  A  party  who  excavates  a  public  highway  for  the  purpose  of 
constructing  a  sewer,  by  contract  with  the  public  authorities,  aiui 
who  properly  restores  the  same  at  the  termination  of  his  work,  is 
not  further  responsible.  But  the  parish  must  look  after  the  sub- 
sequent repairs,  whether  rendered  necessary  by  the  natural  subsi- 
dence of  the  earth,  by  reason  of  the  former  excavation,  or  by 
ordinary  wear  and  tear.3 


*SECTION    VI. 


Land  for   Ordinary  and  Extraordinary   Uses. 


1.  By  English  statute  may  take  land  for  all 

necessary  uses. 

2.  Companies  have  the  same  power  here. 


3.  So  also  of  companies  connecting  at  state 
lines. 


§  68.  1.  By  the  English  statutes,  railway  companies  may  not 
only  purchase  land  for  the  purpose  of  the  track,  but  also  for  all 
such  extraordinary  uses  as  will  conduce  to  the  successful  prosecu- 
tion of  their  business.1     This  includes  the  site  of  stations,  yards, 

Eq.  179.  But  in  Rangeley  v.  Midland  Railw.,  Law  Rep.  3  Ch.  App.  306,  it  is  said 
the  company  have  no  power  under  the  statute  to  divert  a  public  foot-path,  so  as 
to  place  it  upon  land  of  which  it  had  not  acquired  the  title. 

3  Hyams  v.  Webster,  Law  Rep.  2  Q.  B.  264. 

1  8  &  9  Vict.  ch.  20,  §  45.  This  section  is  only  operative  to  enable  the  com- 
pany to  take  lands  for  extraordinary  purposes,  beyond  the  line  of  deviation,  by 
consent  of  the  owners.  But  it  is  held  that  the  justices  have  no  jurisdiction, 
under  the  Railway  Clauses  Consolidation  Act,  to  determine  when  accommodation 
works  are  necessary,  but  only  what  works  are  necessary,  assuming  that  some  such 
works  are  to  be  made.  Reg.  v.  Waterford  &  L.  Railw.,  2  Irish  Law  (n.  s.),  580. 
See  post,  §  93  et  seq.  In  the  case  of  Chicago,  Burlington,  &  Quincy  Railw.  v. 
Wilson,  17  111.  123,  it  was  held,  that  a  grant  to  a  railway  company  to  construct 
a  road,  with  such  appendages  as  may  be  deemed  necessary  for  the  convenient  use  of 
the  same,  will  authorize  them  to  take  land,  compulsorily,  for  workshops.  And  this 
power  is  not  exhausted  by  the  apparent  completion  of  the  road ;  but  if  an  in- 
crease of  business  shall  require  other  appendages,  or  more  room  for  tracks,  it  may  in 
like  manner  be  taken,  toties  quoties.  But  the  land-owner  may  traverse  the  right 
of  the  company  to  take  the  land,  and  have  it  determined  by  the  proper  tribunal. 
S.  Carolina  Railw.  v.  Blake,  9  Rich.  228.  So  also  the  company  may  take  land 
fur  (.Tecting  a  paint-shop  and  lumber  and  timber  sheds  for  the  use  of  the  com- 
pany. Low  v.  Galena  &  Chicago  Union  Railw.,  18  111.  324.  And  the  company 
may  take  all  lands  requisite  for  stations,  for  the  storing  and  keeping  of  cars  and 

[*244] 


EMINENT    DOMAIN.  PART  III. 

wharves,  places  for  the  accommodation  of  passengers,  and  the  de- 
I  ol  freight,  both  live  and  dead,  and  for  the  erection  of  weighing- 
machines,  toll-houses,  offices,  warehouses,  and  other  buildings  and 
conveniences  ;  land  for  ways  to  the  railway  while  in  the  course  of 
construction,  and  to  stations  always.  But  a  railway  company  in 
England  cannoi  acquire  the  fee  of  land  for  the  mere  purpose  of  ex- 
cavating  soil  in  order  to  construct  an  embankment.2     And  it  has 

1 n  decided   thai   a  railway  company  cannot  take  land  for  any 

subsidiary  purpose,  even  where  the  direct  act  of  the  company 
comes  within  the  powers  granted  them.3  As  where  they  proposed 
*  to  alter  the  course  of  the  road,  in  such  a  manner  as  to  accommodate 
an  adjoining  land-owner,  in  consideration  of  which  he  proposed  to 
pay  a  portion  of  the  expense  of  the  alteration,  the  company  were 
enjoined  from  making  the  alteration,  although  coming  clearly 
within  their  powers,  if  done  solely  for  their  own  accommodation. 
The  ground  of  the  injunction  was,  that  the  alteration  required  the 
removal  of  the  house  of  A.,  and  the  change  was  made  partly  for 
the  accommodation  of  B.,  a  purpose  not  within  the  powers  granted 
the  railway  company.  But  it  is  incident  to  the  grant  of  a  railway, 
that  it  may  lay  down  as  many  sidings  and  other  collateral  tracks 
as  are  fairly  requisite  to  accommodate  its  business.4  But  this  will 
not  allow  the  company  to  build  a  branch  road  on  a  different  route 
from  that  embraced  in  its  charter.4 

2.  The  same  may  undoubtedly  be  done,  in  this  country,  whether 
any  express  provision  to  that  effect  is  contained  in  the  charter  of 
the  company,  or  the  general  statutes  of  the  state,  or  not ;  such  power 

necessarily  implied,  as  indispensable  to  the  accomplishment 
of  the  general  purposes  of  the  corporation,  and  the  design  of  the 
lative  grant. 

\nd  the  same  implied  power  is  to  be  extended  to  a  railway 
corporation,  in  a  neighboring  state,  with  which,  by  express  statute, 

engines,  t'nr  the  receipt  and  delivery  of  freight,  and  for  its  safe  storage.     And  it 
is  no  answer  to  this  claim  that  there  are  other  lands  suitable  for  those  uses  which 
npany  might  purchase,  or  that  the  company  already  have  a  limited  interest 
in  the  I.umI-  proposed  to  be  taken.     In  re  N.  Y.  &  H.  Railw.,  46  N.  Y.  546. 

Midsussex  Railw.,  1  Gif.  151;  s.  c.  affirmed,  3  De  G.  &  J 

:  1 1  Id  v.  Salisbury  &  Y.  Railw.,  1  Gif.  158;  s.  c.  on  appeal,  5  Jur.  (N  S  ) 
7-_'. 

1  B  0.  &  M.  Railw.  Co.  V.  Smith,  47  Me.  35.  A  grant  to  cross  a  highway 
will  not  justify  running  parallel  to  and  upon  it.     lb. 

[•245] 


§  68.  LAND   FOR   ORDINARY    AND   EXTRAORDINARY    USES.  263 

railways  of  the  state  where  the  lands  lie  have  the  right  to  unite  at 
the  line  of  the  state,5  or  to  extend  their  road  into  this  state.6 
*  And  for  the  purpose  of  exercising  the  rights  conferred  by  their  act 
upon  the  company,  the  contractor  for  the  execution  of  railway 
works  must  be  deemed  an  agent  of  the  company.7 

5  State  v.  Boston,  Concord,  &  Montreal  Railw.  Co.,  25  Vt.  433;  s.  c.  1  Redf. 
Am.  Railw.  Cases,  84.  In  this  case  a  railway  company  in  New  Hampshire  had 
constructed  their  road  to  the  line  of  Vermont  (where,  by  statute  of  the  legislature 
of  Vermont,  two  other  roads  were  chartered,  with  permission  to  unite  with  any 
New  Hampshire  road),  and  had  there  purchased  some  fifteen  acres  of  land, 
adjoining  the  terminus  of  their  road,  which  is  of  course  the  "westernmost" 
bank  of  Connecticut  River,  their  bridge  being  all  in  New  Hampshire  except  the 
western  abutment,  which  of  necessity  must  rest  upon  Vermont  soil.  The  com- 
pany bad  no  express  grant  from  the  legislature  of  Vermont.  A  controversy  aris- 
ing between  this  New  Hampshire  road  and  the  Vermont  roads  at  this  point,  in 
regard  to  the  terms  of  junction,  a  quo  warranto  was  prosecuted  on  behalf  of  the 
state,  to  determine  the  right  of  the  New  Hampshire  railway  to  purchase  and 
hold  lands  in  the  state  of  Vermont. 

It  was  attempted  to  maintain,  on  the  part  of  the  prosecution,  that  there 
existed  a  right  in  any  state  to  confiscate  or  escheat  lands  held  by  a  foreign  cor- 
poration. But  the  court  repudiated  the  proposition,  and  held  that  the  New 
Hampshire  road,  by  the  grant  from  the  Vermont  legislature  of  the  right  of  the 
Vermont  roads  to  form  a  junction  with  this  road,  at  the  line  of  the  state,  had 
acquired  the  implied  permission  to  purchase  and  hold  so  much  land  as  was 
necessary  for  the  accommodation  of  their  present  and  prospective  business  at 
that  point,  whether  any  junction  had  yet  been  arranged  at  the  point  or  not ; 
and  that  fifteen  acres  was  not  an  unreasonable  extent  of  land  for  such  purposes, 
there  being  no  question  but  the  New  Hampshire  railway  had,  by  its  charter,  the 
right  to  hold  real  estate,  for  the  necessary  purposes  of  its  incorporation,  to  an 
amount  beyond  what  it  had  yet  purchased. 

The  court  in  this  case  did  not  hold  that  the  New  Hampshire  road  had  any 
right  to  take  land  by  compulsory  proceedings  in  Vermont,  or  that  their  purchase 
of  the  land  would  deter  the  Vermont  roads,  at  this  point,  from  taking  by  statu- 
tory compulsion  from  them  such  portions  of  the  same  land  as  they  might  require 
for  their  own  purposes.  See  also  Nashville  Railw.  v.  Cowardin,  11  Humph. 
348.-  In  the  Supreme  Court  of  New  Hampshire,  20  Law  Rep.  646,  Crosby  v. 
Hanover,  it  was  held  that  the  franchise  of  a  toll-bridge  across  Connecticut 
River  might  be  taken  for  a  free  highway,  upon  compensation  being  made  to  the 
proprietors  ;  and  that  it  made  no  difference,  that  one  of  the  abutments  of  the 
bridge  was  within  the  limits  of  the  State  of  Vermont,  and  consequently  could 
not  be  taken  by  any  proceedings  in  New  Hampshire,     s.  c.  36  N.  H.  404. 

6  New  York  &  Erie  Railw.  v.  Young,  33  Penn.  St.  175. 

7  Semple  v.  The  London  &  Birmingham  Railw.,  9  Sim.  209;  s.  c.  1  Railw. 
C.  480  ;  Vt.  Central  Railw.  v.  Baxter,  22  Vt.  365 ;  ante,  §  66  ;  Lesher  v.  Wabash 
Nav.  Co.,  14  111.  85. 

[*246] 


264 


EMINENT    DOMAIN. 


PART  III. 


S  1  - 1    T  I  I  »  N     VI  I. 


Title  acquired  by  Company. 


pony  have  only  right  of  way. 

nothing  from  soU  except  for  con- 

'■•in. 
■  I  in  fa  -simpL  to  company. 

what  Uses  may  taki  land. 

■,'lu-ay,  extent  of. 
licting  rights  in  different  companies. 
7,  8     /■     •     "  the  American  states. 
9    /.    ht  to  us>  streets  of  a  city. 


10.  Lava  not  the  same  in  all  the  states. 

1  1.    Rule  in  Mussachusi  tts. 

12,  18.   Land  reverts  to  the  owner. 

14.  True  rule  stated. 

15.  Conditions  must  be  performed. 

16.  Further  assurance  of  title. 

17.  Condemnation  cannot  be  impeached. 

is.    Where  public  acrjuire  fee,  it  will  never 
r,  vert  to  grantor. 


§  69.  1.  Questions  have  sometimes  arisen,  in  regard  to  the  pre- 
tle  acquired  by  a  railway  company  in  lands  purchased  by  them, 
where  the  conveyance  is  a  fee-simple.  It  is  certain,  in  this  coun- 
try, upon  general  principles,  that  a  railway  company,  by  virtue  of 
their*  compulsory  powers,  in  taking  lands,  could  acquire  no  absolute 
fee-simple,  but  only  the  right  to  use  the  land  for  their  purposes. 
And  it  is  wry  questionable  whether  a  railway,  in  such  case,  is  en- 
titled to  the  herbage  growing  upon  the  land,  or  to  cultivate  the 
same,  or  to  dig  for  stone,  or  minerals,  in  the  land,  beyond  what  is 
-  i iv  for  their  purposes  in  construction. 

2.   In    England,  the  statutes1  give  all  such  minerals  to  the  for- 

i  9  Vict.  c.  20,  §  17.  In  Conn.  &  Pass.  Railw.  Co.  v.  Holton,  32  Vt. 
18,  it  was  decided,  that  the  land-owner,  after  liis  land  was  legally  appropriated 
for  the  track  of  a  railway,  lias  no  right  to  enter  upon  or  use  such  land  for  any 
purpose  which  in  the  least  degree  endangers  or  embarrasses  its  use  for  any  pur- 
■  :•  which  the  railway  has  appropriated  it.  And  consequently  the  owner 
could  not  enter  upon  the  land  with  teams  to  remove  turf  therefrom,  the  effect 
of  which  entry  would  be  to  enhance  the  danger  of  cattle  getting  upon  the  track, 
and  to  in'  pease  the  dusl  by  the  passage  of  the  cars  after  the  sward  is  removed  from 
the  Bides  of  the  track.  And  the  land-owner  has  no  rij^ht  to  cross  the  track  of 
the  company  at  any  other  point  than  that  established  by  the  taking  of  the  land; 
nor  can  he  build  a  farm-crossing,  unless  established  by  law.  And  a  railway 
company  may  maintain  trespass  for  all  unlawful  entries  and  acts  upon  the  land 
appropriated  to  their  use  when  such  :nts  interfere  with  their  exclusive  possession. 
B.  P.  in  N-  Penn.  R.  v.  ELi ■hman,  5  Am.  Law  Reg.  (N.  S.)  49.  And  in  Troy 
and  Boston  Railw.  v.  Potter,  42  Vt.  265,  it  was  decided  that  the  owner  of  the 

ind  condemned  for  the  use  of  a  railway  has  no  right  to  enter  upon  the 
land  while  in  the  use  of  the  railway,  and  take  therefrom  the  herbage  and  other 
products  of  the  soil. 

[•247] 


§  69.  TITLE   ACQUIRED   BY   COMPANY.  265 

mer  owner  of  the  land,  except  such  as  are  necessary  in  con- 
struction, unless  the  same  shall  have  been  expressly  purchased. 
And  in  this  country,  no  doubt,  the  same  construction  would  be 
adopted,  in  regard  to  all  lands  taken  by  compulsory  proceeding.2 
*  3.  But  it  admits  of  some  question,  we  think,  what  is  the 
precise  effect  of  a  deed,  in  fee-simple,  to  a  railway  company.  It 
would  seem,  upon  general  principles,  that  the  grantor  should  be 
estopped  from  claiming  any  interest  in  the  land,  after  the  execu- 
tion of  his  deed.  But  it  seems  to  be  agreed,  in  all  the  books,  that, 
to  the  efficacy  of  a  deed  of  land,  it  is  requisite  that  the  grantee  be 
capable  of  taking  the  estate.  And  if  the  grantee  be  an  alien,  or  a 
corporation  incapable  of  holding  such  estate,  the  deed  is  inopera- 
tive. Hence,  in  some  of  the  cases,  it  seems  to  be  a  just  inference 
from  the  reasoning  of  the  court,  that  a  railway,  by  a  deed  in  fee- 
simple,  acquires  only  a  right  of  way,3  that  being  all  which  such 
corporation  is  capable  of  taking. 

2  Baker  v.  Johnson,  2  Hill  (N.  Y.),  342.  It  was  held  here,  that  a  con- 
tractor to  build  a  canal,  who  stipulated  with  the  commissioners  to  find  all  the 
materials  necessary  to  the  performance  of  the  work,  with  stipulations  in  the  con- 
tract that  he  might  use  all  the  earth  obtained  by  excavation,  might  also  use  the 
stone  obtained  by  excavating  the  bed  of  the  canal  across  plaintiff's  land,  and 
that  trover  will  not  lie  for  such  use.  Timber  standing  on  land  taken  for  a  rail- 
way belongs  to  the  owner  of  the  land,  except  so  far  as  necessary  for  the  con- 
struction and  repair  of  the  road.  Preston  v.  Dub.  &  Pacific  Railw.  Co.,  11  Iowa, 
15.  Earth  and  minerals  above  the  grade  of  the  road  may  be  used  by  the  com- 
pany, but  those  below  belong  to  the  owner  of  the  land.  Evans  v.  Haefner,  29 
Mo.  1-41. 

The  condemnation  of  land  for  the  construction  of  a  railway  justifies  the  entry 
and  necessary  excavation  of  the  soil  by  the  company  and  its  servants.  Green 
v.  Boody,  21  Ind.  10.  But  stone  excavated  in  the  construction,  and  which  is 
not  used  upon  any  portion  of  the  line,  belongs  to  the  owner  of  the  land. 
Chapin  v.  Sullivan  Railw.  Co.,  39  N.  H.  561.  But  it  seems  from  this,  and 
from  the  general  practice  in  the  construction  of  railways,  that  earth  or  any  other 
material  which  is  excavated  upon  one  portion  of  the  line  may  be  used  upon  any 
other  portion,  if  required. 

3  Uean  v.  Sullivan  Railw.,  2  Foster,  316  ;  United  States  v.  Harris,  1  Sumner, 
21.  It  is  held  in  some  cases,  that  a  grant  to  a  railway,  before  its  incorporation, 
is  valid,  not  being  the  conveyance  of  a  fee,  and,  to  its  operation  and  effect,  not 
requiring  the  existence  of  a  grantee,  at  the  time  of  the  conveyance.  Rathbone 
v.  Tioga  Navigation  Co.,  2  Watts  &  Serg.  -47.  But  it  seems  now  to  be  con- 
sidered that  railway  companies  may  acquire  the  absolute  fee  in  land  by  purchase 
and  deed  in  fee-simple,  and  the  title  will  remain  in  the  company  after  it  has 
changed  the  location  of  its  road,  and  ceased  to  use  it  for  corporate  purposes. 
Page  v.  Heineberg,  40  Vt.  81. 

[*248] 


266  EMINENT   DOMAIN.  PART  III. 

I.  It  has  been  held  in  some  of  the  states,  that  the  lands  of  a 
railway  company  are  subject  to  sale  upon  execution  against  them, 
or  may   be  assigned  by  them.4      So,  too,  they  may  purchase  and 

'  Arthur  r.  Commercial  &  Railroad  Hank,  9  Smedes  &  Marshall,  394.  But 
this  right  to  levy  upon  the  lands  of  a  railway  company  only  extends  to  such 
lands,  however  acquired,  as  are  not  required  to  the  full  exercise  and  enjoyment 
of  the  corporate  franchise.  Plymouth  Railw.  Co.  v.  Colwell,  39  Penn.  St.  337. 
And  a  canal  basin  is  not  Buch  a  legitimate  incident  of  a  railway  franchise  as  to 
be  protected  from  levy,  where  there  is  no  authorized  canal  connection.  lb. 
And  town  lots  held  by  a  railway  company  are  not  to  be  regarded  as  an  incident 
of  the  franchise,  so  as  to  pass  by  a  mortgage  of  the  road  "with  its  corporate 
privileges  and  appurtenances,"  unless  directly  appurtenant  to  the  road  and  indis- 
jsary  to  the  exercise  of  its  franchises.  Shamokin  Valley  Railw.  v. 
Livermore,  17  Penn.  St.  465.  It  has  been  held,  that  railway  bonds  were  liable 
to  lew  on  execution,  but  that  seems  questionable.  Hetherington  et  al.  v.  Hay- 
den.  11  fowa,  335. 

In  a  case  in  Vermont,  Hill  v.  Western  Vermont  Railw.  Co.,  32  Vt.  68.  the 
company,  before  the  road  was  laid  out  or  surveyed,  procured  a  bond  from 
B.  to  sell  them  such  lands  owned  by  him  as  should  be  required  for  their  road. 
Their  charter  provided  that  the  directors  might  cause  such  surveys  of  the  road 
to  be  made  as  they  deemed  necessary,  and  fix  the  line  of  the  same,  and  that  the 
company  might  enter  upon  and  take  possession  of  such  lands  as  were  necessary 
f>r  the  construction  of  their  road  and  requisite  accommodations.  The  survey  of 
the  road,  made  by  order  of  the  directors,  designated  certain  land  belonging  to 
depot  grounds;  and  the  company  paid  him  for  and  took  the  same,  but 
never  received  any  conveyance  thereof  from  him.  The  plaintiff,  having  recov- 
ered a  judgment  against  the  company,  levied  his  execution  upon  a  portion 
of  this  land,  and  brought  ejectment  against  the  company  to  recover  possession 
thereof.  The  referee,  to  whom  the  case  was  referred,  found  that  a  part  of  the 
land  embraced  in  the  levy  was  never  necessary  to  the  company  for  radway 
purposes,  and  would  not  become  so  prospectively.  Held,  that  by  B.'s  contract 
■with  the  company  he  was  not  bound  to  convey  to  them  any  greater  quantity  of, 
or  estate  in,  his  land  than  they  required  for  depot  accommodations;  that  under 
their  charter  the  company  could  not  acquire  anymore  land,  or  any  greater  estate 
therein,  for  the  purposes  of  a  road-bed  or  stations,  than  was  really  requisite 
for  sncli  uses;  that  the  estate  so  requisite  was  not  one  in  fee-simple,  but 
merely  an  easement,  and  was,  therefore,  not  subject  to  be  levied  upon  by  the 
creditors  of  the  company;  that  when  taken  for  such  purposes,  the  rule  was 
the  same,  whether  the  land  was  taken  compulsorily  by  condemnation  and  the 
award  of  commissioners,  as  to  its  extent  and  price,  or  under  the  agreement  of 
tin-  parties  as  to  one  or  both  of  these  particulars;  that  under  their  charter  the 
directors  had  power  to  lay  out  their  road  and  stations  as  they  saw  fit;  and  that, 
so  long  as  they  acted  in  good  faith  and  not  recklessly,  their  decision  as  to 
the  quantity  of  land  required  for  depot  accommodations  would  be  regarded  as 
conclusive. 

[*248] 


§  69.  TITLE   ACQUIRED   BY   COMPANY.  267 

*  hold  land  for  the  procurement  of  materials,  or  for  the  economical 
construction  of  the  road.5  In  an  English  case,6  it  was  held  that 
the  railway  could  not  use  land,  thus  conveyed,  for  any  other  pur- 
pose than  that  expressed  in  the  acts  of  parliament,  by  virtue  of 
which  the  company  exercised  their  functions. 

5.  It  has  been  held  that,  where  one  railway  has  power  in  their 
act  to  cross  another  railway,  there  being  no  express  permission  in 
the  act  for  one  company  to  take  land,  or  for  the  other  company  to 
sell,  that  the  first  company  could  not  be  compelled,  by  mandamus, 
to  purchase  any  of  the  land  upon  which  the  other  road  was  con- 
structed, their  only  claim  being  one  for  damages.7  So,  also,  the 
right  to  make  a  junction  with  a  pre-existing  railway,  does  not  im- 
ply the  power  to  take  the  title  to  any  of  the  lands  of  such  railway, 
unless  that  is  indispensable  to  effect  the  junction,  but  only  to  enter 
upon  such  lands,  by  way  of  easement,  for  the  purpose  of  effecting 
the  junction.8 

6.  But  where  the  legislature  confer  the  power  upon  two  railway 

*  companies  to  purchase  compulsorily  the  same  piece  of  land,  and 
one  company  has  taken  the  land  and  constructed  their  road  upon 
it,  equity  will  enjoin  the  other  company  from  proceeding  to  take  it 
compulsorily  for  their  use,  until  the  conflicting  rights  of  the  com- 
panies are  determined  by  a  trial  at  law.9 

7.  The  general  course  of  decisions  in  this  country  coincides  with 
the  English  common-law  rule,  in  regard  to  the  title  acquired  by  the 
public,  by  the  exercise  of  the  right  of  eminent  domain,  that  is,  that 
no  more  of  the  title  is  divested  from  the  former  owner  than  what  is 
necessary  for  the  public  use.10  The  owner  may  still  maintain  tres- 
pass, for  any  injury  to  the  freehold  by  a  stranger.10 

8.  And  in  regard  to  railways,  in  particular,  it  has  been  repeat- 
edly decided  in  the  different  states,  that  they  take  only  an  ease- 

5  Overmyer  v.  Williams,  15  Ohio,  26. 

6  Bostoek  v.  The  North  Staffordshire  Railw.,  3  Sm.  &  Gif.  283. 

7  Reg.  v.  South  Wales  Railw.,  13  Q.  B.  988;  s.  c.  6  Railw.  C.  489. 

8  Oxford,  Worcester,  &  Wolverhampton  Railw.  v.  South  Staffordshire  Railw., 

1  Drew.  255 ;  s.  c.  19  Eng.  L.  &  Eq.  131. 

9  Manchester,  S.  &  L.  Railw.  v.  The  Great  N.  Railw.,  9  Hare,  284;  s.  c.  12 
Eng.  L.  &  Eq.  216. 

10  Dovaston  v.  Payne,  2  H.  Bl.  527;  Rust  v.  Low,  6  Mass.  90;  Jackson  v. 
Rutland  &  Burlington  Railw.,  25  Vt.  151 ;  s.  c.  1  Redf.  Am.  Railw.  Cases,  362 ; 

2  RohVs  Ab.  566,  pi.  1. 

[*249,  250] 


EMINENT    DOMAIN.  PART  III. 

men1  in  land  condemned  for  their  use.11  In  an  important  case12 
in  the  Supreme  Court  of  the  United  States,  involving  questions  of 
title  in  regard  to  the  streets  in  the  city  of  Pittsburgh,  Mr.  Justice 
.1/  Lean  thus  sums  up  the  general  doctrine:  — 

"  By  the  common  law,  the  fee  in  the  soil  remains  in  the  original 
owner  where  a  public  road  is  established  over  it;  but  the  use  of 
the  n»;ul  is  in  the  public.  The  owner  parts  with  this  use  only ;  for 
'  if  the  road  shall  be  vacated  by  the  public  he  resumes  the  exclu- 
sive possession  of  the  ground;  and  while  it  is  used  as  a  highway 
he  is  entitled  to  the  timber  and  grass  which  may  grow  upon  the 
surface,  and  to  all  minerals  which  may  be  found  below  it.  He 
may  bring  an  action  of  trespass  against  any  one  who  obstructs  the 
road." 

'.'.  But  a  query  is  expressed  here,  as  in  many  other  cases, 
whether  this  rule  applies  to  the  streets  and  thoroughfares  of 
cities.  In  a  case  in  one  of  the  British  provinces  on  this  continent, 
Nova  Scotia,  it  is  said  to  have  been  held,  by  a  divided  court,  after 
long  debate  and  deliberation,  that  the  title  to  land,  covered  by  a 
highway  or  street,  vested  absolutely  in  the  crown,  and  that  the 
owner  had  no  reversionary  interest.13 

10.  Some  of  the  American  cases  seem  to  intimate  a  different 
rule  from  that  which  generally  prevails  in  reference  to  highways, 
in    r<  gard  to  the  title  acquired  by  railway  companies.14     But  in 

"  Railroad  r.  Davis,  2  Dev.  &  Bat.  457;  Dean  v.  Sullivan  Railw.,  2  Foster, 
316  :  I'l  ink  Road  v.  Hull'.  A:  P.  Railw.,  20  Barb.  644;  Weston  v.  Foster,  7  Met. 
2'.'7.  In  a  case  in  Ohio,  where  the  subject  seems  to  have  been  examined  with 
cure-  anil  ^tudy,  it  is  laid  down,  as  the  result  of  the  law  upon  the  subject, 
tliit  only  such  interest  as  will  answer  the  public  wants  can  be  taken;  and  it  can 
be  beld  only  so  long  as  it  is  used  by  the  public,  and  cannot  be  diverted  to  any 
other  purpose.  Giesy  v.  <  iincinnati,  Wil.  &  Zanesv.  Railw.,  4  Ohio  (X.  S.),  308. 
Hooker  ».  Qtica  &  Minden  Tump.  Co.,  12  Wend.  371;  People  v.  White, 
11  Barb.  26  ;  Blake  o.  Rich,  34  N.  H.  282.  The  title  of  the  land-owner  is  thus 
defined  in  tins  last  case.  The  exclusive  right  of  property  in  the  land,  in  the 
ige  upon  its  surface,  and  in  the  minerals  below  it,  remains  un- 
changed, subject  always  to  the  right  of  the  company  to  construct  and  operate 
their  road,  in  any  loyally  authorized  mode. 

"  Barclay©.  Howell's  Lessee,  6  Pet.  (U.  S.)  498.  Cases  to  establish  the  general 
principle  here  announced  might  be  multiplied  to  any  extent.  They  will  be  found 
extensively  collected  in  3  Kent,  Comm.  432,  and  notes.  By  the  civil  law,  it  is 
said,  the  soil  of  public  highways  is  in  the  public,  and  the  law  of  Louisiana  is  the 
vim.-.     Renthorp  r.  Bang,  1  Martin,  97. 

13  Kurh  r    Dauphin,  .James,  159. 

4  Wheeler  i\  Rochester  &  Syra.  Railw.,  12  Barb.  227  ;  Hunger  v.  Tonawanda 

[•251] 


§  69.  TITLE    ACQUIRED   BY   COMPANY.  269 

one  case  15  it  was  held,  that  the  municipal  authority  of  a  city  have 
no  power  to  grant  permission  to  a  railway  company  to  take  or  in- 
jure the  property  of  a  citizen  ;  but  the  companies  have  an  implied 
authority  to  make  such  side-tracks  and  continuations  at  the  ter- 
mini of  their  road  as  may  be  reasonable  and  necessary  for  the 
transaction  of  their  business  and  the  accommodation  of  the  public, 
and  may  take  private  property  for  these  purposes.  The  right  to 
*use  and  enjoy  the  street  is  an  appurtenance  to  the  adjoining  land, 
and  an  injury  to  the  appurtenance  is  an  injury  to  the  whole  prop- 
erty ;  and  as  for  such  an  injury  the  statute  prescribes  no  remedy, 
the  land-owner  must  resort  to  his  common-law  remedy. 

11.  But   in    a   case   in   Massachusetts,16  the  title  seems  to  us 

Railw.,  4  Comst.  349;  Coster  v.  New  Jersey  Railw.,  3  Zab.  227.  The  New 
York  Court  of  Appeals,  quite  recently,  upon  elaborate  examination,  came  to  the 
conclusion,  that  a  deed  to  a  railway  company,  granting  land  to  it  and  its  succes- 
sors, conveys  an  estate  in  fee.  Nicoll  v.  New  York  &  Erie  Railw.,  12  N.  Y. 
121.  But  see  Henry  v.  Dubuque  &  Pacific  Railw.,  2  Clarke  (Iowa),  288.  In 
De  Varaigne  v.  Fox,  2  Blatchf.  C.  C.  95,  it  was  held,  that  where  the  statute 
conferred  the  right  to  take  the  fee  of  land,  and  it  was  taken  upon  compensation 
accordingly,  the  court  will  not  construe  the  grant  as  a  conditional  fee  or  usufruct, 
leaving  a  possible  reverter  to  the  original  proprietor,  but  will  regard  the  entire 
property  as  vested  in  the  grantee  for  ever,  and  that  if  any  right  accrues  to  the 
former  owner  in  consequence  of  the  change  of  the  destination  of  the  property, 
after  the  continuance  of  the  use  for  twenty-six  years,  it  is  an  equitable  and  not  a 
legal  right. 

15  Protzman  v.  Ind.  &  Cin.  Railw.,  9  Ind.  467.  What  shall  be  a  reasonable 
extension  of  the  track  of  a  railway  in  a  city  beyond  the  depot  is  here  discussed. 
It  seems  to  be  more  a  question  of  fact  than  of  law.  Evansville,  &c.  Railw.  v. 
Dick,  id.  433. 

16  Hazen  v.  B.  &  M.  Railw.,  2  Gray,  574.  But  the  company  have  no  right  to 
do  any  act  upon  the  land  except  what  is  conducive  to  the  use  of  the  land  for  the 
purposes  of  their  grant,  of  which  they  are  the  judge.  Brainard  v.  Clapp,  10 
Cush.  6.  In  this  case,  Shaw,  C.  J.,  thus  defines  the  title  of  the  railway,  in  lands 
taken  for  their  use  :  "  The  railroad  company  are  authorized  to  do  all  acts,  within 
the  five  rods,  which  by  law  constitute  their  limits,  in  taking  away  or  leaving 
gravel,  trees,  stones,  and  other  objects,  which  in  their  judgment  may  be  neces- 
sary and  proper  to  the  grading  and  levelling  of  the  road,  in  adjusting  and  adapt- 
ing it  to  other  roads,  bridges,  buildings,  and  the  like,  so  as  to  render  it  most 
conducive  to  the  public  uses  which  the  railway  is  intended  to  accomplish.  What- 
ever acts,  therefore,  are  requisite  to  the  safety  of  passengers  on  the  railway,  to 
the  agents,  servants,  and  persons  employed  by  the  company,  and  to  the  safe 
passage  of  travellers,  on  and  across  highways  and  roads  connected  with  it,  and 
which  can  be  done  within  the  limits  of  the  five  rods,  the  company  have  a  right 
under  their  act  of  incorporation  to  do.  This  is  embraced  in  the  idea  of  taking 
land  for  public  use."     See  Chicago  &  Miss.  Railw.  v.  Patchin,  16  111.  198. 

[*252] 


270  EMINENT   DOMAIN.  PART  III. 

to  be  explicitly  and  fully  stated,  and  the  only  ground  of  distinction 
between  railways  and  common  highways,  as  to  the  title  of  the  land 
taken,  y.tv  intelligibly  pointed  out.  The  court  here  say,  "The 
right  acquired  by  the  corporation,  although  technically  an  ease- 
ment, yet  requires  for  its  enjoyment  a  use  of  the  land  permanent 
in  its  nature  ami  practically  exclusive." 

L2.  Hence,  it  seems  to  be  admitted  that,  even  in  cases  where 
the  statute  provides  for  the  taking  of  the  fee,  upon  the  discontinu- 
ance  of  the  public  use,  the  land  reverts  to  the  former  owner.17 
But  where  a  special  act  authorizes  a  municipal  corporation  to  hold 
tlif  fee  of  the  soil  for  the  site  of  an  almshouse,  it  was  held  that  the 
original  owner  and  his  representatives  could  claim  no  exclusive 
interest  therein,  or  any  reversionary  title  thereto,  after  the  removal 
of  the  almshouse  to  another  site.18 

*  13.  In  some  of  the  cases  in  this  country,  it  has  been  held,  that 
it  is  only  the  residuum  of  title  remaining  in  the  corporation,  at 
the  time  a  railway  is  discontinued,  that  reverts  to  the  former 
owner  of  the  land,  and  that,  in  the  mean  time,  the  company  may 
wholly  defeat  the  reversion,  by  a  conveyance  in  fee-simple;  and 
this  remarkable  proposition  is  distinctly  announced  in  one  case,19 
— l*  Corporations  have  a  fee-simple  for  purposes  of  alienation, 
but  they  bave  only  a  determinable  fee  for  purposes  of  enjoyment." 

14.  If  it  were  said  that  corporations,  created  for  special  pur- 
poses of  intercommunication,  like  railways  and  canals,  and  in- 
ed  with  the  sovereign  prerogative  of  eminent  domain  for  these 
purposes  only,  had  no  interest,  or  estate,  in  lands  whatever,  except 
for  the  mere  purpose  of  carrying  on  the  functions  with  which  they 
were  invested  by  the  state,  and  could  neither  use  nor  convey  the 
lands,  to  be  used  for  any  other  purpose  whatever,  it  would  seem 
far  more  in  accordance  with  established  principles  and  generally 
received  notions  upon  the  subject.     In  the  same  case  it  is  said, 

pie  r.  White,  11  Barb.  2G ;  United  States  v.  Harris,  1  Sumner,  21. 
But  by  the  repeal  of  a  charter  the  lands  do  not  revert  to  the  former  owner,  but 
the  franchises  of  the  corporation  are  resumed  by  the  state,  and  the  railway  re- 
mains public  property,  subject  to  the  management  and  control  of  the  state.  Erie 
&  Northeast  Railw.  v.  Casey,  26  Penn.  St.  287.  But  see  Rexford  v.  Knight, 
infra. 

■  Bayward  r.  Mayor  of  New  York,  3  Seld.  314.     So  also  in  regard  to  lands 
appropriated  to  the  use  of  the  state  canals.     Rexford  v.  Knight,  11  X.  Y.  308. 

Nicol  v.  New  York  &  Erie  Railw.,  12  Barbour,  460.     See  State  v.  Rives, 
5  Ired.  297. 

[*253] 


§  69.  TITLE   ACQUIRED   BY   COMPANY.  271 

a  grant  to  a  corporation,  created  only  for  a  term  of  years,  purport- 
ing to  convey  a  fee,  will  not  be  construed  to  convey  only  a  term  for 
years. 

15.  In  all  these  cases  where  the  title  of  the  company  depends 
upon  conditions,  they  must  be  strictly  performed  and  strictly 
construed.20 

16.  But  where,  by  the  law  of  the  state,  railways,  upon  discov- 
ery that  the  title  they  are  acquiring  may  prove  defective,  have 
the  right  to  take  new  proceedings,  it  was  held,  that  the  discov- 
ery of  a  mortgage  upon  lands  will  justify  the  abandonment  of 
pending  process,  and  instituting  procedure  under  the  section 
which  allows  them  to  extinguish  incumbrances,  on  that  por- 
tion required  for  their  road.21  And  the  appraisal  of  land  sub- 
ject to  an  easement  in  the  grantor,  is  irregular,  and  no  title 
passes.22 

17.  After  land  is  condemned  for  the  use  of  a  railway,  the  adju- 
dication *  can  no  more  be  impeached  by  any  collateral  proceeding, 
or  by  evidence,  than  the  judgment  of  any  other  court  of  exclusive 
jurisdiction.23  And  it  was  held,  under  the  Pennsylvania  statute,24 
that  after  the  award  of  land  damages,  and  payment  of  the  money, 
the  company  become  the  owners  of  the  land,  notwithstanding  the 
pendency  of  a  certiorari  to  remove  the  case  into  the  Supreme 
Court.25 

18.  Where  the  Commonwealth  of  Pennsylvania,  in  the  construc- 
tion of  her  public  works,  acquired  the  fee-simple  of  land  taken 
therefor,  either  by  purchase  or  the  right  of  eminent  domain,  and 
the  land  was  devoted  to  the  use  of  a  highway,  a  cessation  of  that 
use  does  not  revest  the  title  in  the  former  owner.26 

20  Bangor  &  Piscataqua  Railw.  v.  Harris,  8  Shepley,  533  ;  Lovering  v.  Railw., 
8  Watts  &  Serg.  459;  Munger  v.  Tonawanda  Railw.,  4  Comst.  349;  Carr  v. 
Georgia  Railw.  &  Banking  Co.,  1  Kelly,  524. 

21  New  York  Central  Railw.  in  re,  20  Barbour,  419. 

22  Hill  v.  Mohawk  &  H.  Railw.,  3  Seld.  152. 

23  Hamilton  v.  Annapolis  &  Elk  Ridge  Railw.,  1  Md.  Cb.  107. 

24  Stat,  of  1829,  §  15. 

25  Sehuler  v.  Northern  L.  Railw.,  3  Whar.  555  ;  ante,  §  65 ;  post,  §  73. 

26  Haldeman  v.  Penn.  R.  Co.,  50  Penn.  St.  425.  See  also  as  to  proceedings 
under  Lateral  Railroad  Acts  of  Pennsylvania,  Brown  v.  Peterson,  40  Penn.  St. 
373;  Boyd  v.  Negley,  id.  377;  Mayor,  &c.  of  Pittsburgh  v.  Penn.  R.  Co.,  48 
id.  355.  It  seems  scarcely  necessary  to  state  that  the  final  judgment  of  condem- 
nation and  the  payment  of  the  award  vests  in  the  company  the  absolute  right  to 
use  the  land  embraced  in  the  judgment  for  all  their  legitimate  purposes.     Dodge 

[*254] 


EMINENT   DOMAIN. 


PART  III. 


♦SECTION    VIII. 


Corporate  Franchises  condemned. 


1    Road franchisi  may  betaken. 

,-'  '..    uuidi  . 

franchise  may  be  taken, 
led. 
n  rtitvtional  restrictions. 
6.  Not  well  di 

7     M  ■  .  in  ti  ruts. 

v    /    •  slative  discretion. 

9.    //•  jhways  and  railways  compared. 


10.  Extent  of  eminent  domain. 

11.  Exclusiveness  of  the  grant,  a  subordinate 

franchise. 

12.  Legislature   cannot   create  a  franchise, 

above  the  reach  of  eminent  domain. 

13.  Legislature  may  apply  streets  in  city  to 

any  public  use. 

14.  Rule  of  compensation,  in  such  cases,  to 

the  owner  of  the  fee,  converting  canal 
into  railway. 


i;  70.  1.  The  franchise  of  a  turnpike,  or  bridge,  or  other  similar 
corporation  may  be  taken  for  a  free  road,  or  for  a  railway,  which, 
as  we  have  said,  is  an  improved  highway.1  And  it  will  make  no 
difference  that  the  franchise  is  situate  partly  within  the  limits  of 
different  states  as  in  the  case  of  a  bridge  across  a  river  which 
forms  the  divisional  line  between  different  states.  But  the  pro- 
-  in  one  state  can  only  take  what  lies  within  its  limits.2 

2.  But  compensation,  either  for  the  entire  franchise,  which  is 
the  more  common  course,  and  ordinarily  the  only  just  mode  of 


r.  Hums,  6  Wis.  514;  Burns  v.  Milw.  &  Miss.  Railw.  Co.,  9  Wis.  450.     And 
the  acceptance  of  the  value  of  the  land  by  the  land-owner,  however  the  amount 
may  have   been  ascertained,  is  an  acquiescence  in    the  taking,  as  much  as  if  he 
had  conveyed  the  land  by  deed.     lb.     The  party  cannot  accept  the  amount  of 
an  award  of  damages,  and  also  appeal   therefrom.     Miss.  &  Mo.  Railw.  Co.  v. 
Byington,  II  [owa,  572.     But  where  by  mutual  submission  the  land-owner  and 
railwaj  company  referred  the  amount  of  damages  to  be  paid  by  the  company  to 
arbitrators,  who  awarded  the  amount  to  be  paid  for  the  title  conveyed  simul- 
taneously, which  the  company  offered  to  do  on  their  part,  but  the  land-owner 
declined   to  perform  on  his   part,  or  to  give  any  encouragement  of  ever  doing, 
but  many  years  after  brought  an  action  against  the  company  for  not  performing 
the  award,  it  was  held  he  could  not.recover.     Smith  v.  Boston  &  Maine  Railw., 
en,  262. 
1  Armington  p    Barnet,  15  Vt.  745;  West  River  Bridge  v.  Dix,  6  How.  (U. 
L6   Vt.  446;   White   River  Turnpike   Co.  v.  Vermont  Central 
Railw.,  21  Vt.  594;  Boston  Water  Power  Co.  v.  Boston  &  Worcester  Railw., 
2  I  Pick.  360;  Central  Bridge  Corporation  v.  City  of  Lowell,  4  Gray,  474. 
isby  v.  Hanover,  :3G  N.  II.  404. 

[*255] 


§  70.  CORPOEATE  FRANCHISES  CONDEMNED.  273 

procedure,  or  for  the  special  injury,  must  be  made.3  But  it  is  no 
objection  to  the  validity  of  an  act  of  the  legislature,  allowing  a 
railway  to  carry  its  track  across  the  land  of  a  mill-dam  company, 
incorporated  by  the  legislature,  that  it  contains  no  express  provi- 
sion for  compensation  to  such  mill-dam  company.  This  is  implied, 
as  in  other  cases,  where  land  is  taken.4  And  the  same  implica- 
tion has  been  held  to  extend  to  the  case  of  a  subsequent  grant  of 
a  railway  which  materially  depreciated  the  use  and  value  of  a  prior 
grant  of  a  bridge.5  But  it  is  the  more  commonly  received  opinion, 
that  a  subsequent  grant,  which  only  incidentally  *  operates  injuri- 
ously to  an  earlier  one,  does  not  require  compensation  to  be  made 
for  such  injury,  unless  expressly  so  provided.6 

3.  So  also  may  the  franchise  of  one  railway  be  taken  for  the 
construction  of  another  railway.7 

4.  In  one  case  the  law  upon  this  subject  is  thus  stated,  by 
Shaw,  C.  J. :  "  The  court  are  of  opinion,  that  it  is  competent  for 
the  legislature,  under  the  right  of  eminent  domain,  to  grant 
authority  to  a  railway  corporation,  to  take  a  highway  longitudinally 
in  the  construction  of  their  road.  The  power  of  eminent  domain 
is  a  high  prerogative  of  sovereignty,  founded  upon  public  exigency, 
according  to  the  maxim,  Salus  reipublicce  lex  supi-ema  est,  to  which 
all  minor  considerations  must  yield,  and  which  can  only  be  limited 
by  such  exigency.  The  grant  of  land  for  one  public  use  must 
yield  to  that  of  another  more  urgent."  8 

5.  The  great  question  of  the  inviolability  of  corporate  franchises, 
which  we  shall  have  occasion  to  discuss  more  at  large  hereafter,9 
is,  no  doubt,  to  a  certain  extent,  involved  here.      For,  upon  gen- 

3  West  River  Bridge  v.  Dix,  6  How.  (U.  S.),  507 ;  Boston  Water  Power  Co. 
».  Boston  &  Worcester  Railw.,  22  Pick.  360.     But  see  11  Leigh,  42. 

4  Boston  Water  Power  Co.  v.  Boston  &  Worcester  Railw.,  supra. 

5  Enfield  Toll-Bridge  Co.  v.  The  Hartford  &  New  H.  Railw.,  17  Conn.  454; 
s.  C.  17  Conn.  40. 

6  White  River  Turnpike  Co.  v.  Vermont  Central  Railw.,  21  Vt.  594. 

7  Grier,  J.,  in  Richmond  Railw.  v.  Louisa  Railw.,  13  How.  (U.  S.),  81,  82; 
8.  c.  2  Redf.  Am.  Railw.  Cases,  600 ;  Newcastle  &  R.  Railw.  v.  P.  &  Jnd.  Railw., 
3  Ind.  464. 

8  Springfield  v.  Conn.  River  Railw.,  4  Cush.  63 ;  s.  c.  1  Redf.  Am.  Railw.  Cases, 
299.  See  also,  upon  the  general  subject,  Chesapeake  &  Ohio  Canal  Co.  v.  Balti- 
more and  Ohio  Railw.,  4  Gill  &  Johns.  1 ;  Forward  v.  Hampshire  &  Hampden 
Canal  Co.,  22  Pick.  462,  where  the  prior  company  is  held  bound  by  acquiescence 
in  the  transfer  of  its  franchises  to  another  company.  Irvin  v.  Turnpike  Co.,  2 
Penn.  466  ;  Rogers  v.  Bradshaw,  20  Johns.  735  ;  Backus  v.  Lebanon,  1 1  N.  H.  19. 

9  Post,  §  231. 

vol.  i.  18  [*2.06] 


274  EMINENT  DOMAIN.  PART  III. 

oral  principles  of  legislative  authority,  there  could  be  no  question 
that  a  corporation,  which  is  the  mere  creature  of  the  legislature, 
might  be,  at  once  and  unconditionally,  extinguished,  by  repeal  of 
the  charter.  This  is  confessedly  within  the  power  of  the  legisla- 
tive authority  of  the  British  parliament;  and  the  legislative 
authority  of  the  parliament  of  Great  Britain  is  no  more  extensive 
than  that  of  the  legislatures  of  the  American  states,  aside  from 
restrictions  contained  in  the  constitutions  of  the  United  States 
and  of  the  several  states.10 

6.  The  only  limitation  upon  this  power  over  private  corpora- 
tions, in  most  of  the  states,  perhaps  in  all,  is  found  in  that  pro- 
vision of  the  United  States  Constitution  which  prohibits  the 
Legislatures  of  the  several  states  from  passing  any  law  impairing 
the  *  obligation  of  contracts.  And  the  proper  limits  of  this 
restriction,  in  regard  to  corporations,  is  not  altogether  well 
defined,  in  the  different  opinions  of  the  several  judges  of  the 
Bupreme  national  tribunal  upon  this  subject;  nor  is  there  any 
thing  approaching  unanimity  among  them. 

7.  But  it  may  perhaps  be  regarded  as  settled,  for  the  time  at 
least,  that  where  exclusive  privileges  are  conferred  upon  private 
corporations,  by  express  words,  or  necessary  implication,  the  grant 
is  irrevocable  and  inviolable.  But  that  the  grant  of  any  privilege 
or  franchise  carries  no  implied  exclusion,  of  similar  privileges 
and  franchises  being  conferred  upon  other  persons,  natural  or  cor- 
porate.11 

8.  The  legislature  may  in  all  instances  determine  when  and 
where  the  public  necessities  require  additional  facilities,  of  a 
similar  or  analogous  character,  where  the  former  grant  is  not 
exclusive.11 

'•'.  And  in  some  cases  of  exclusive  and  perpetual  grants,  for 
common  highways  or  bridges,  it  has  been  held,  that  this  did  not 
preclude  the  legislature  from  granting  railways  and  railway  bridges 
within  the  limits  of  the  former  grant.12     In  the  case  just  referred 

I •  trtmouth  ( lollege  v.  Woodward,  4  Wheat.  518. 

River  Bridge  v.  Warren  Bridge,  11  Pet.  420;  Thorpe  v.  Rut.  & 
Bur.  Railw.,  27  Vt.  140;  8.  c.  2  Redf.  Am.  Railw.  Cases,  587  ;  Boston  &  Lowell 
Railw.  >■.  Salem  &  Lowell  Railw.,  2  Cray,  1;  Mohawk  Bridge  Co.  v.  Utica  & 
Bch.  Railw.,  6  Paige,  554  ;  Hudson  &  Delaware  Canal  Co.  v.  New  York  &  Erie 
Railw.,  '.'  T 

Ree   r.  Wilmington  &    Raleigh  Railw.,   2  Jones   Law,   186.     But   see 
Enfield  Bridge  I  ...  c.  Hartfurd  &  New  II.  Railw.,  17  Conn.  40,  454. 

[•257] 


§  70.  CORPORATE  FRANCHISES  CONDEMNED.  275 

to,12  the  court  held,  that  a  perpetual  grant  of  a  toll-bridge  across 
the  Cape  Fear  River,  which  in  terms  subjected  all  persons  to  a 
penalty  for  transporting  persons  or  property  across  that  river  in 
any  other  manner,  within  six  miles  of  the  plaintiff's  bridge,  would 
not  subject  the  defendant's  company  to  the  penalty  for  carrying 
persons  and  property  across  the  river,  upon  their  road,  by  means 
of  a  bridge  erected  within  the  six  miles  ;  that  the  grant  was  in- 
tended to  be  exclusive  only  as  to  all  modes  of  travel  and  trans- 
portation then  known,  but  not  to  exclude  all  improvements  thereon, 
in  all  future  time.13 

10.  But  the  exclusive  character  of  a  corporate  grant  will  not 
preclude  the  power  to  take  the  franchise,  upon  making  compensa- 
tion, *  under  the  right  of  eminent  domain,  the  stipulation  in  the 
charter,  that  the  grant  shall  be  exclusive  of  all  others,  being  sub- 
ject to  the  same  law  as  other  property,  whether  in  possession  or 
action ;  all  which  is  confessedly  subject  to  the  exercise  of  the  right 
of  eminent  domain,  by  the  sovereign.14 

11.  It  has  sometimes  been  characterized,  as  a  refinement  or  an 
invention,  to  identify  the  covenant,  in  the  charter  of  a  private  cor- 
poration, that  the  grant  shall  be  exclusive  of  all  others,  with  the 
charter  itself,  and  thus  subject  it  to  the  law  of  eminent  domain. 
But  it  seems  to  us  entirely  a  sound  view,  in  all  cases  where  the 
whole  franchise  of  the  corporation  is  proposed  to  be  taken,  and 
that  the  charge  of  refinement  is  rather  to  be  laid  at  the  door 
of  such  as  attempt  to  raise  a  distinction  between  the  exclusive- 
ness  of  the  grant  and  the  grant  itself,  in  order  to  preserve  the  in- 
violability of  the  former,  which  is  the  lesser  and  subordinate 
franchise,  when  the  latter,  and  paramount,  and  vital  franchise 
of  a  corporation  is  confessedly  subject  to  the  law  of  eminent 
domain.15 

13  But  this  distinction  is  certainly  not  attempted  to  be  maintained  in  the 
majority  of  the  cases  upon  this  subject,  either  in  England  or  in  this  country. 
Post,  §  231  et  seq. 

14  Enfield  Toll  Bridge  Co.  v.  Hartford  &  New  Haven  Railw.,  17  Conn.  40 
and  454.  This  doctrine  has  been  so  repeatedly  asserted  in  all  the  courts  of  the 
country,  that  it  seems  scarcely  requisite  to  multiply  references.  And  the  right 
to  take  the  franchise  of  another  corporation,  by  parity  of  reason,  carries  the 
right  to  impair  another  franchise  to  any  extent,  upon  making  indemnity.  Matter 
of  Kerr,  42  Barb.  119. 

15  West  River  Bridge  Co.  v.  Dix,  16  Vt.  446;  s.  c.  6  How.  (U.  S.),  507, 
539,  Opinion  of  Woodbury,  J. :  who  argues  that  it  is  difficult  to  comprehend  why 

[*258J 


EMINENT   DOMAIN.  PART  III. 

L2.   li  is  intimated  in  West,  River  Bridge  Company  v.  Dix,  by 

try,  J.,  that  if  the  charter  of  the  corporation  contained  an 

ezpresB  stipulation  againsl   the  exercise  of  the  right  of  eminent 

domain  upon  the   corporation,  this  might  secure  the  franchise. 

But  this  is  certainly  not  the  prevailing  opinion.10 

The  fee  of  the  streets  of  a  city,  where  it  has  been  acquired 
by  the  municipality  under  the  right  of  eminent  domain,  becomes 
•  a  public  trust  for  general  public  purposes,  and  is  under  the  un- 
qualified control  of  the  legislature,  and  any  legislative  appropria- 
tion of  it  to  public  use  is  not  to  be  regarded  as  the  appropriation 
of  private  property,  so  as  to  require  compensation  to  the  city  or 
municipality  to  render  it  constitutional.17  The  mere  possibility  *  of 
reverter  to  the  original  owner,  or  his  heirs  or  grantees,  is  not 
led  in  such  cases  as  any  appreciable  interest  requiring  to  be 
compensated.17 

14.  Courts  seem  sometimes  to  have  entertained  doubts  if  it  is 
competent  for  a  railway  company  to  appropriate  the  franchise  of  a 
canul  company  along  the  same  line  so  as  to  supersede  the  canal  by 
its  own  works.18  But  we  apprehend  there  can  be  little  doubt  on 
that  point;  and  the  case  last  cited  holds,  that  if  this  is  attempted 
and  acquiesced  in  by  the  canal  company,  it  is  not  competent  for  the 
owner  of  the  fee  in  the  land  to  claim  a  reverter  of  the  title  by  rea- 
son of  the  want  of  power  in  the  railway  company.  The  most  the 
owner  of  the  fee  could  claim  in  such  case  is  to  recover  compensa- 

ness  of  the  grant  to  a  private  corporation  should,  upon  principle,  be 
any  more  inviolable  by  legislative  authority  than  any  other  part  of  the  corporate 
franchise.     It  is  only  as  property  that  it  is  valuable,  or  that  it  is  protected  at  all. 
Ami  all  property  is,  in  cases  of  proper  necessity,  subject  to  the  law  of  eminent 
domain.     It   i.s  very  questionable  whether  this  law  should  be  held  to  extend  to 
portions  of  public  works  which  may  always  be  obtained  in  the  market,  and 
■  ,  by  consequence,  there  is  no  practical  necessity. 
"    In  regard  to  the  right  of  eminent  domain,  it  seems  now  to  be  conceded, 
that  do  legislature,  upon  any  consideration  or  pretence  whatever,  can  deprive  a 
future  legislature  of  its  exercise,  in  the  absolute  annihilation  of  corporate  fran- 
apon  jusl   and  adequate  compensation.     In  Backus  v.  Lebanon,   11  N. 
Hamp.  19,  Parker,  C.  J.,  gave  a  very  able  exposition  of  the  question.    See  also, 
.in-  effect,  the  opinion  of  Mr.  Justice  Grier,  of  the  United  States  Circuit 
Court,  in  Milnor  r.  The  New  J.  Railw.,  6  Law  Reg.  6,  7  ;  and  Crosby  v.  Hano- 
B       646;  s.  c.  36  N.  H.  404. 
I      pie  « .  Kerr,  27  N.  Y.  188.     See  also  Philadelphia  &  Reading  Railw.  v. 
of  Philadelphia,  47  Penn.  St.  325. 
Hatch  <■.  <  in.  ,v  Ind.  Railw.,  18  Ohio  (N.  S.),  92. 
[*259-261] 


§71. 


COMPENSATION. 


MODE   OF   ESTIMATING. 


277 


tion  for  any  additional  land  taken,  and  for  any  additional  burden 
imposed  upon  the  land  appropriated  to  the  canal,  as  well  as  for 
any  additional  damage  to  the  adjoining  lands  of  the  same  owner.18 


SECTION    IX. 


Compensation.  —  Mode  of  Estimating. 


1.  General  inquiry  simple. 

2.  Remote  damage  and  benefits  not  to  be  con- 

sidered. 

3.  General  rule  of  estimating  compensation. 

4.  Prospective  damages  assessed. 

5.  In  some  states  value  "  in  money  "  is  re- 

quired. 

6.  7.  Damage  and  benefits  cannot  be  consid- 

ered in  such  cases. 

8.  Rule  of  the  English  statute. 

9.  Farm  accommodations. 

10-  Benefits  and  damage,  if  required,  must 
be  stated. 


n.  13.   Course  of  the  trial  in  estimating  land 
damages. 

11.  Items  of  damages  not  indispensable  to  be 

stated. 

12.  In  contracts  for  land  statutory  privileges 

must  be  stated  to  be  secured. 

13.  Questions  of  doubt  referred  to  experts. 

14.  Special  provisions  as  to  crossing  streets 

only  permissive. 

15.  In  an  award  of  farm  accommodations, 

time  of  the  essence  of  the  award. 


§  71.  1.  The  inquiry  in  regard  to  what  compensation  shall  be 
made,  for  land  taken  for  public  works  would,  on  the  face  of  it, 
seem  to  be  a  very  simple  one.  One  would  naturally  suppose  the 
value  of  the  land  taken  or  the  damage  sustained,  to  be  the  fair 
measure  of  compensation,  and  that  there  could  be  no  serious  diffi- 
culty in  ascertaining  the  amount. 

2.  But  in  consequence  of  numerous  ingenious  speculations  in 
regard  to  possible  advantages  and  disadvantages  arising  from  the 
public  works,  for  which  lands  are  taken,  the  whole  subject  has 
become,  in  this  country  especially,  involved  in  more  or  less  uncer- 
tainty. All  the  cases  seem  to  concur  in  excluding  mere  general 
and  public  benefit,  in  which  the  owner  of  land  shares  in  common 
with  the  rest  of  the  inhabitants  of  the  vicinity,  from  being  taken 
into  consideration  in  estimating  compensation. 

3.  It  has  been  said,  the  appraisers  are  not  to  go  into  conjectural 
and  speculative  estimations  of  consequential  damages,1  but  con- 

'  Meachamu.Fitchburg  Railw.,  4Cush.  291;  8.  c.  1  Redf.  Am.  Railw.  Cases,  276. 
Upton  v.  South  Reading  Branch  Railw.  Co.,  8  Cush.  600 ;  Albany  N.  Railw.  Co. 
v.  Lansing,  16  Barb.  68;  Canandaigua  &  N.  Railw.  v.  Payne,  16  Barb.  273;  Green- 
ville &  C.  Railw.  Co.  v.  Partlow,  5  Rich.  428 ;  White  v.  Charlotte  &  S.  C.  Railw. 

[*261] 


•27^  EMINENT   DOMAIN.  PART  III. 

fine  *  themselves  to  estimating  the  value  of  the  land  taken  to  the 
owner.  This  is  most  readily  and  fairly  ascertained,  by  determin- 
ing the  value  of  the  whole  land,  without  the  railway,  and  of  the 
portion  remaining  after  the  railway  is  built.  The  difference  is  the 
true  compensation  to  which  the  party  is  entitled.2 

I.   Bui  the  appraisers  are  to  assess  all  the  damages,  present  and 
pective,  to  which  the  party  will  ever  be  entitled,  by  the  prudent 
construction  and  operation  of  the  road.3 

Co.,  6  Rich.  17  ;  A.  &  S.  Railw.  Co.  v.  Carpenter,  14  111.  190;  Symonds  v.  The 
City  of  (  lincinnati,  14  Ohio,  147;  Brown  v.  Cincinnati,  id.  541 ;  Mclntire  v.  State, 
5  Blackf.  884;  Stale  v.  Digby,  5  Blackf.  543;  James  River  &  Kanawha  Co. 
r.  Turner,  9  Leigh,  313  :  Schuylkill  Co.  v.  Thoburn,  7  Serg.  &  R.  411.  A  jury 
may  take  into  the  account,  in  estimating  the  dan.ages,  the  effect  the  construction 
of  the  railway  will  have  in  diminishing  deposits  of  sediment,  which  had  been 
made  by  a  river,  in  higli  water  flowing  upon  the  land  and  greatly  enriching  it. 
>rd  Railw.  v.  Greeley,  28  N.  H.  237.  And  the  deterioration  of  the  adja- 
cent parts  of  the  same  land  (but  which  are  not  taken),  either  for  agriculture,  or 
sale  for  building  lots  ;  by  risk  from  fire,  care  of  family  and  stock,  inconvenience 
caused  by  embankments,  excavations,  and  obstructions  to  the  free  use  of  build- 
ings, is  to  be  taken  into  the  account,  in  estimating  damages.  Somerville  &  E. 
Railw.  v.  Doughty,  2  Zab.  495.  The  increase  or  decrease  in  the  price  of  the 
remaining  land,  and  the  expense  of  fencing,  are  to  be  taken  into  the  account,  in 
-sing  compensation.  Greenville  &  Columbia  Railw.  v.  Partlow,  5  Rich.  428. 
The  value  of  the  land  taken,  considering  its  relation  to  the  land  from  which  it  is 
severed,  is  to  be  given,  and  such  further  sum  as  the  incidental  injury  to  the  land 
not  taken,  from  the  construction  of  the  road,  exceeds  the  incidental  benefits. 
Nashville  Railw.  v.  Dickerson,  17  B.  Monr.  173,  180.  Louisville  &  Nash.  Railw. 
r.  Thompson,  18  id.  735. 

2  Troy  &  Boston  Railw.  v.  Lee,  13  Barb.  169,  171;  Matter  of  F.  Street,  17 
U '•  ad.  649 ;  Canal  Co.  v.  Archer,  9  Gill  &  J.  480;  Parks  v.  City  of  Boston,  15 
Pick.  198;  Somerville  Railw.  v.  Doughty,  2  Zab.  495;  Hornstein  v.  Atlantic  & 

o  Railw.,  .",1  Perm.  St.  87;  S.  F.,  &c,  &  S.  Railw.  v.  Caldwell,  31 
Cal.  367.  See  also  Wil.  &  Read.  Railw.  v.  StaufFer,  60  Penn.  St.  374;  Pitts- 
burg, It.  W.  &  < !.  Railw.  v.  Gilleland,  56  Penn.  St.  445 ;  Walker  v.  Old  Colony 
&  Newport  Railw.,  103  Mass.  10;  and  Arnold  v.  Hudson  River  Railw.,  49  Barb. 
108,  a-  to  damage  to  land  not  taken.  See  also  Matter  of  Utiea  Railw.,  56  Barb. 
156.  But  no  account  is  to  be  taken,  in  estimating  land  damages,  of  the  benefit 
the  railway  may  have  been  to  other  property  of  the  plaintiff,  disconnected  with 
that  taken.     Railw.  v.  Gilson,  8  Watts,  243;  but  see  Columbus,  P.  &  I.  Railw. 

3  mpson,  4  Am.  Law  Reg.  696;  s.  c.  5  Ohio  (N.  S.),  251;  Rochester  &  Sy. 
Railw.  r.   Budlong,  6  How.  Pr.  467;  Sater  v.  B.  &  Mt.  PL   Railw.,  1  Clarke, 

I  he  value  of  the  land,  at  the  time  of  trial,  or  at  any  time  subsequent  to 
the  construction  of  the  work,  cannot  be  referred  to  in  determining  the  benefits 
d  upon  that  portion  of  the  land  not  taken.     Ind.  Central  R.  v.  Hunter, 
8  Ind.  74. 

3  Dearborn  v.  Boston,  Concord,  &  Montreal  Railw.  Co.,  24  N.  H.  179.    Clark 

[*262] 


§71.  COMPENSATION.  —  MODE    OP   ESTIMATING.  279 

*  5.  Some  of  the  state  constitutions  in  terms  provide,  that  com- 
pensation for  private  property,  taken  for  public  use,  shall  be  made 
"  in  money,"  and  many  eminent  jurists  have  strenuously  main- 
tained that  compensation,  to  the  extent  of  the  value  of  the  land 
taken,  must  always  be  made  in  money,  and  that  no  deduction  can 
be  made  on  account  of  any  advantage  which  is  likely  to  accrue  to 
other  property  of  the  owner,  by  reason  of  the  public  work  for 
which  the  property  is  taken.4  Such  accidental  advantages  to  the 
portion  of  land  not  taken  as  drainage  by  means  of  cuts  in  the  soil 
from  grading  the  railway  cannot  be  taken  into  account.5 

6.  In  a  case  in  Vermont  the  court  held,  that  taking  land 
for  a  public  highway  is  not  appropriating  it  to  public  use,  within 
the  meaning  of  the  constitution  of  that  state,  which  requires  com- 
pensation in  such  cases  to  be  made  "  in  money,"  but  that  this  pro- 
vision only  applies,  where  the  fee  of  the  land  is  taken  ;  and  that 
where  an  easement  only  is  taken  for  the  purpose  of  a  highway, 
and  the  remaining  land  is  worth  more  than  the  whole  was  before 

v.  Vt.  &  Canada  Railw.,  28  Vt.  103.  The  expense  of  fencing  is  to  be  included 
in  the  estimate  of  land  damages.  Winona  &  St.  Peter  Railw.  Co.  v.  Denman, 
10  Minn.  267.  The  matter  of  estimating  land  damages  to  the  owner  of  a  farm, 
a  portion  of  which  is  taken  for  the  construction  of  a  railway,  is  discussed  very 
much  in  detail,  and  with  a  very  considerate  regard  to  the  equitable  interests  of 
all  parties,  in  the  case  of  Robbins  v.  Milw.  &  Hor.  Railw.  Co.,  6  Wis.  636. 
Damages  done  to  mill  property  in  lessening  the  advantages  of  the  water-power, 
present  and  prospective,  should  be  taken  into  the  account  in  estimating  land 
damages.     Dorian  v.  E.  Br.   &  Waynesburg  Railw.  Co.,  46  Penn.  St.  520. 

4  2  Kent,  Comm.  7th  ed.  394,  and  note;  Jacob  v.  The  City  of  Louisville,  9 
Dana,  114;  The  People  v.  The  Mayor  of  Brooklyn,  6  Barb.  (S.  C.)  209.  But 
this  last  case  was  subsequently  reversed  in  the  Court  of  Appeals.  4  Comst.  419  ; 
Rice  v.  Turnpike  Co.,  7  Dana,  81  ;  Woodfolk  v.  N.  &  C.  Railw.,  2  Swan,  422. 
In  this  case  it  was  said,  benefits  to  the  remaining  land  may  be  set  off  against 
injury,  but  the  party  cannot  be  compelled  to  apply  such  benefits  towards  the 
price,  of  his  land.  Railways.  Lagarde,  10  La.  Ann.  150.  Under  such  a  pro- 
vision in  the  constitution  of  Ohio,  it  was  held,  that  in  assessing  damages,  the 
jury  had  no  right  to  take  into  consideration  the  fact,  that  the  value  of  the  land 
had  been  increased  by  the  proposal  or  construction  of  the  work.  Giesy  v.  Cin., 
Wil.  &  Zanesv.  Railw.,  4  Ohio  (N.  S.),  308.  General  benefits  resulting  from 
the  erection  of  a  railway,  to  all  who  own  property  in  the  vicinity,  are  not  to  be 
taken  into  the  account,  in  estimating  land  damages;  and  it  was  doubted  if  special 
benefits,  accruing  to  the  remainder  of  the  land,  could  be  so  taken  into  account. 
Little  Miami  Railw.  v.  Collett,  6  Ohio  (N.  S.),  182.  Pacific  Railw.  v.  Chrystal, 
25  Mo.  544. 

6  Evansville  &  C.  Railw.  v.  Fitzpatrick,  10  Ind.  120 ;  Same  v.  Cochran,  id. 
560. 

[*263] 


EMINENT   DOMAIN.  PART  III. 

the   laying  out  of  the  road,  the  party  is  entitled  to  no  compen- 
sation.6 

•7.  Thia  is  certainly  not  in  conformity  with  the  general  course 
of  decision  upon  this  subject.  It  is  the  only  case,  probably,  where 
an  attempt  is  made  to  escape  from  such  a  constitutional  provision, 
in  this  manner.  Some  will  doubtless  regard  it  as  too  refined  to 
sound.  And  if  it  is  true,  as  is  sometimes  claimed,  that  the 
legislature  had  no  right  to  resume  the  fee  of  land  for  highways 

6  Livermore  v.  Jamaica,  23  Vt.  361.  This  case  has  been  questioned.  1  Ben- 
nett's Shelford  on  Railways,  441.  And  the  opposite  view  maintained  in  Bem- 
felly  v.  Green  Bay  Co.,  13  Wall.  166.  See  also  Reitenbaugh  v.  Chester  Valley 
Railw.,  21  Penn.  St.  100.  Contra,  McMahon  v.  Cincinnati  Railw.,  5  Ind.  413; 
3  id.  543.  Benefits  arising  to  the  owner  of  the  land  "by  the  construction  of  the 
read"  held  not  to  have  reference  to  the  whole  work,  but  to  that  particular  por- 
tion which  runs  through  the  party's  land.  Milwaukee  &  Mis.  R.  v.  Eble,  4 
Chand.  72.  An  act  which  provides  for  setting  off  the  advantages  to  other  land 
against  the  value  of  the  land  taken,  is  not,  on  that  account,  unconstitutional. 
McMastera  v.  Commonwealth,  3  Watts,  292.  But  it  has  very  often  been  held, 
that  such  accidental  advantages,  especially  where  they  are  not  peculiar  to  the 
particular  laud-owner,  cannot  be  set  off  against  the  specific  value  of  the  land 
taken.  State  v.  Miller,  3  Zab.  383  ;  Woodfolk  v.  Nash.  &  Ch.  Railw.,  2  Swan, 
422;  Hill  v.  M.  &  II.  Railw.,  5  Denio,  206;  Keasy  v.  Louisville,  4  Dana,  154; 
.  Louisville,  5  Dana,  28;  People  v.  Mayor  of  B.,  6  Barb.  209.  But 
many  cases  hold  the  contrary.  People  v.  Mayor  of  Brooklyn,  4  Coinst.  419, 
where  8.  C.  6  Barb.  209,  is  reversed;  Rexford  v.  Knight,  15  Barb.  627.  But 
where  profits  are  to  be  taken  into  the  account,  the  title  to  have  them  considered 
obtains  at  the  time  the  servitude  is  located.  Palmer  Co.  v.  Ferrill,  17  Pick.  58. 
•  fits  by  increase  of  business  and  population,  markets,  schools,  stores,  and 
other  like  improvements,  cannot  be  considered,  in  estimating  damages,  for  flow- 
ing land,  by  a  mill-dam.     lb. 

In  a  case  in  Xew  Hampshire,  petition  of  the  Mount  Washington  Road  Com- 
pany. 35  X.  II.  134,  it  was  decided,  that  in  assessing  damages  for  land  taken  for 
a  turnpike,  or  free  highway,  compensation  is  to  be  given  for  the  actual  value  of 
the  land  taken,  without  regard  to  any  speculative  advantages  or  disadvantages  to 
the  owner  from  the  making  of  the  highway.  See  Cushman  v.  Smith,  34  Maine, 
1' 17.  But  in  Indiana  Central  Railw.  v.  Hunter,  8  Ind.  74,  the  same  rule  is 
adopted,  as  in  the  case  first  cited  in  this  note.  And  in  Whitman  v.  Boston  & 
Maine  Railw.,  7  Allen,  313,  it  was  decided,  that  in  estimating  the  damages  to 
land  by  reason  of  the  location  of  a  railway  across  it,  and  the  filling  up  of  a  canal 
in  which  the  owner  of  the  lot  had  a  privilege,  if  the  value  of  the  lot  is  so  en- 
hanced, that  what  remained  was  worth  more  than  the  whole  lot  was  before,  the 
owner  has  no  claim  for  damages.  S.  P.  in  the  s.  C,  3  Allen,  133.  But  the 
benefits  to  be  deducted  from  the  value  of  land  taken  must  accrue  to  the  remain- 
ing land,  and  not  to  all  land  in  the  same  vicinity.  Winona  &  St.  Peter  Railw. 
v.  Waldron,  11  Minn.  515. 

[*264] 


§71.  COMPENSATION. — MODE   OF   ESTIMATING.  281 

and  railways,  such  a  constitutional  provision,  with  such  a  construc- 
tion, would  have  little  application  to  the  taking  of  land  for  such 
uses.7 

*  8.  The  English  statute  provides,  that,  in  estimating  compen- 
sation for  land  damages  "  regard  shall  be  had,  not  only  to  the  land 
taken,  but  also  to  damage,  by  reason  of  severance  from  other  lands 
or  otherwise  injuriously  affecting  such  lands."  There  are,  too,  in 
the  English  statute,  provisions  for  compensation  to  sundry  sub- 
ordinate interests  in  lands,  as  to  lessees  for  years,  and  to  tenants 
from  year  to  year.  And  also  in  regard  to  mines.  The  company 
are  not  entitled  to  mines  or  minerals  under  lands,  except  such 
parts  as  shall  be  necessary  to  use  in  the  construction  of  the  road, 
unless  expressly  purchased.  It  has  been  held  that  stone  got  from 
quarries  are  minerals,8  and  that  mines  are  quarries,  or  places  where 
any  thing  is  dug.9  By  the  English  statute,  the  company  may  re- 
move or  displace  gas  or  water  pipes,  making  compensation  to  all 
parties  injured. 

7  Hatch  v.  Vermont  Central  Railway  Co.,  25  Vt.  49  ;  s.  c.  1  Redf.  Am.  Railw. 
Cases,  285;  Reitenbangh  v.  Chester  Valley  Railw.,  21  Penn.  St.  100.  Contra, 
Little  Miami  Railw.  v.  Naylor,  2  Ohio  (N.  S.),  235.  And  in  a  case  in  Mississippi, 
Brown  v.  Beatty,  34  Miss.  227,  where  the  constitution  required  "compensation 
first  to  be  made  "  for  land  taken,  it  was  held  the  provision  secured  to  the  owner  the 
right  to  receive  the  cash  value  in  money,  and,  in  addition,  full  indemnity  for  all 
damages  by  means  of  severance,  and  that  no  enhanced  value  of  the  portion  of  land 

-  not  taken  could  be  taken  into  the  account.  See  also  Branson  v.  Philadelphia,  47 
sVPenn.  St.  329.  Henry  v.  Dubuque  &  Pacific  Railw.  Co.,  10  Iowa,  540.  It  is  said 
in  one  case,  what  is  very  nearly  a  truism,  that  corporate  existence  and  the  right 
of  eminent  domain  can  only  be  derived  from  legislative  grant,  and  that  both  must 
be  shown  to  justify  taking  lands  compulsorily,  and  also  compliance  with  all  condi- 
tions of  the  grant.  Atkinson  v.  Marietta  &  Cin.  Railw.  Co.,  15  Ohio  (N.  S.), 
21.  Post,  §  76.  The  dedication  of  land  to  the  use  of  a  street  willnot  authorize 
the  legislature  to  appropriate  it  to  the  use  of  a  railway  track  without  compensation 
to  the  owner,  and,  if  this  is  attempted,  it  may  be  restrained  by  injunction.  Schur- 
meier  v.  St.  Paul  &  P.  Railw.,  10  Minn.  82. 

8  Micklethwait  v.  Winter,  6  Exch.  644  ;  s.  c.  5  Eng.  L.  &  Eq.  526. 

9  Hodges  on  Railways,  238,  note  (y).  The  more  common  mode  of  estimating 
land  damages  unquestionably  is,  to  give  the  company  the  specific  benefit  caused 
to  land,  a  portion  of  which  is  taken,  in  the  enhancing  the  value  of  the  same,  and 
only  to  allow  the  land-owner  such  a  sum  as  will  leave  him  as  well  off  in  regard 
to  the  particular  land  as  if  the  works  had  not  been  built,  or  his  land  taken.  This 
is  done  by  giving  the  land-owner  a  sum  equal  to  the  difference  between  what  the 
whole  land  would  have  sold  for  before  the  road  was  built,  and  what  the  remain- 
der will  sell  for  after  the  construction.  Harvey  v.  Lack.  &  Bloomsburg.  Railw., 
47  Penn.  St.  428.     But  this  rule  will,  in  many  cases,  prove  entirely  inadequate 

[*265] 


EMINENT   DOMAIN.  PART  III. 

9.  And  where  commissioners  appraise  the  damages  upon  the 
basis  of  the  railway  making  and  maintaining- certain  works  for  the 
accommodation  of  the  land-owner,  as  a  culvert  and  waste-way,  etc., 
it  was  held  this  portion  of  the  award  was  not  void  ;  but  if  acquiesced 
in  by  the  company,  and  the  land  taken,  and  compensation  made 
*  upon  that  basis,  they  thereby  became  bound  by  its  provisions.10 
J>ut  where  it  was  referred  to  arbitration  to  estimate  the  damages 
caused  to  the  plaintiff,  and  the  company  by  the  express  terms  of 
its  charter  was  bound  to  make  suitable  crossings  for  the  accomoda- 
tion of  land-owners  through  whose  land  the  right  of  way  was 
taken,  and  the  land-owner  told  the  agents  of  the  company,  at  the 
hearing  before  the  arbitrators,  that  he  should  require  a  crossing  to 
be  provided  for  his  convenience  ;  and  the  agents  claimed  that  the 
arbitrators  had  nothing  to  do  with  this  matter,  and  that  claim  was 
acquiesced  in  by  the  arbitrators  and  the  parties,  and  the  award 
only  embraced  the  damage  to  the  land,  and  subsequently  the  land- 
owner was  induced  to  convey  to  the  company  the  right  of  way, 
without  annexing  a  condition  binding  the  company  to  maintain  a 
crossing  for  his  accommodation  ;  upon  the  assurance  of  the  coun- 
sel of  the  company  that  such  deed  would  not  affect  his  right  to 
claim  a  crossing,  it  was  held,  upon  a  bill  to  reform  the  deed  and  to 
establish  his  right  to  the  crossing,  that  he  was  entitled  to  the  relief 
sought,  and  an  injunction  was  granted  accordingly.11  But  where 
a  private  way  crossed  the  line  of  railway  obliquely,  and  the  award 
of  land  damages  only  indicated  the  point  at  which  the  company 
were  to  supply  a  crossing,  it  was  held  a  sufficient  compliance  with 
the  obligation  of  the  company  to  give  a  crossing  at  right  angles, 
although  this  did  not  connect  with  the  termini  of  the  road  or  afford 
any  access  to  it.12 

10.  In  some  of  the  states  in  this  country,  the  advantages  and 
disadvantages  of  taking  land  for  a  railway  are  required  to  be 
stated  in  the  report  of  appraisal,  and  the  omission  to  make  such 
specific  statement  was  held  a  fatal  omission.13     So,    too,    where 

and  unsatisfactory,  and  where  it  has  been  adopted  it  may  be  regarded  as  only 
extending  to  other  cases  of  a  very  similar  character.  Win.  &  St.  Peter's  Railw. 
'••  Denm  in,  L0  Minn.  267. 

1     M    :•-",  Petitioner,  IS  Pick.  443. 

"  Green  v.  Morris  &  Essex  Railw.  Co.,  1  Beasley,  165. 

*-'  Mann  v.  Great  S.  &  W.  Railw.  Co.,  9  Ir.  Com.  L.  Rep.  105. 

13  Ohio  &  Pennsylvania  Railw.  v.  Wallace,  14  Penn.  St.  245 ;  Reitenbaugh  v. 
[*266] 


§  71.  COMPENSATION.  —  MODE   OP   ESTIMATING.  283 

*  additional  expense  of  fencing  is  allowed  in  improved  land,  the 
report  must  specify  that  fact.14 

11.  But  in  general  there  is  no  discrimination  made  in  the  report 

Chester  Valley  Railw.,  21  Perm.  St.  100;  R.  R.  Co.  v.  Gilson,  8  Watts,  243; 
Zack  v.  Perm.  Railw.  Co.,  25  Perm.  St.  394.  But  it  has  been  held,  in  some  cases, 
where  the  advantages  resulting  to  the  land-owner  were  to  be  taken  into  the 
account,  that  the  value  of  the  land  need  not  be  stated  separately  from  the 
damage,  in  an  award  of  arbitrators,  but  only  the  amount  of  the  whole  injury. 
At  all  events,  such  amendments  will  be  allowed,  as  to  cure  such  defects.  Greenville 
&  Columbia  Railw.  v.  Nunnamaker,  4  Rich.  107.  Questions  have  sometimes 
been  made,  in  regard  to  which  party,  in  proceedings  of  this  character,  is  entitled 
to  go  forward,  in  the  proofs  and  argument.  Upon  principle,  and  in  analogy 
to  similar  proceedings  upon  other  subjects,  we  think  there  can  be  little  doubt 
this  right  is  with  the  land-owner,  in  the  proceedings  before  the  jury  and  the 
commissioners  or  arbitrators,  where  he  is  to  all  intents  actor.  But  after  having 
obtained  an  award,  it  has  been  more  usual,  in  practice,  to  allow  the  excepting 
party  to  go  forward.  1  Greenleaf  1s  Ev.  §§  76,  77  ;  Connecticut  River  Railw.  v. 
Clapp,  1  Cush.  559;  s.  c.  1  Am.  Railw.  C.  450;  Mercer  v.  Whall,  5  Q.  B.  447. 
But  see  Albany  N.  Railw.  Co.  v.  Lansing,  16  Barb.  68,  where  the  court  say, 
"The  commissioners  have  the  right  and  power  to  exercise  their  own  discretion 
in  reference  to  the  order  that  they  take  in  appraising  the  land.  They  may  view 
the  land  first  and  hear  the  proofs  and  allegations  afterwards,  or  vice  versa.  So 
whether  one  party  or  the  other  should  first  be  heard,  is  for  them  to  determine- 
Having  decided  that  the  railway  corporation  might  open  and  close  the  hearing, 
the  defendant  was  concluded  by  their  decision,  as  also  would  their  decision  have 
been  conclusive  on  the  company  had  the  same  privilege  been  awarded  to  the 
owner  of  the  land."  But  where  the  error  in  the  exercise  of  this  discretion  does 
manifest  wrong,  at  nisi  jn-ius,  the  verdict  will  be  set  aside  for  this  reason  alone 
in  the  full  bench.     1  Greenleaf 's  Ev.  104,  and  note,  §  76. 

Awards  of  land  damages  have  been  set  aside  for  excessive  damages.  Som- 
erville  &  Easton  Railw.  v.  Doughty,  2  Zab.  495.  But  this  subject  was  some- 
what considered  in  Troy  &  Boston  Railw.  v.  Lee,  13  Barb.  169;  Same  v. 
Northern  Turnpike  Co.,  16  Barb.  100;  and  it  was  held  that  such  award  should 
not  be  set  aside,  unless  it  appeared  that  the  commissioners  erred  in  the  principles 
by  which  their  judgment  should  be  guided,  or  were  clearly  mistaken  in  the  appli- 
cation of  correct  principles.  This  is  putting  them  much  upon  the  same  ground 
as  awards  in  other  cases.  And  in  Walker  v.  Boston  &  Maine  Railw.,  3  Cush.  1, 
it  was  held,  that  the  Common  Pleas,  to  whom  the  verdict  of  a  sheriff's  jury  is  to 
be  returned,  and  who  may  set  the  same  aside,  for  any  good  cause,  were  justified 
in  doing  so,  for  irregularity  in  impanelling  the  jury ;  or  in  the  conduct  of  the 
jury;  or  in  the  instructions  given  the  jury  by  the  sheriff;  or  for  facts  affecting 
the  purity,  honesty,  or  impartiality  of  the  verdict,  such  as  tampering  with  the 
jury  or  other  misconduct  of  the  party ;  or  any  irregularity  or  misconduct  of 
the  jurors.  But  in  a  court  of  error  the  verdict  can  only  be  set  aside  for  error 
appearing  of  record.  But  see  §  72,  post;  Nicholson  v.  New  York  &  New  Haven 
Railw.,  22  Conn.  74. 

14  New  Jersey  Railw.  v.  Suidam,  2  Harrison,  25. 

[*267] 


284  EMINENT    DOMAIN.  PART  III. 

estimating  damages  for  taking  land  for  public  works,  between  the 
value  of  the  land  appropriated  and  the  incidental  injury  from 
■■•  and  otherwise;  and,  unless  specially  required  by  the 
charter  of  the  company  or  some  other  legislative  act,  such  discrim- 
ination does  not  seem  indispensable  to  the  validity  of  the  report, 
but  would  unquestionably,  in  the  majority  of  cases,  tend  to  render 
the  report  more  satisfactory.15 

*  12.  In  contracts  between  railway  companies  and  land-owners, 
in  regard  to  farm  accommodations,  if  the  company  desire  to  retain 
any  special  distinction  conferred  by  statute,  they  must  incorporate 
the  statute,  either  in  terms  or  by  reference,  into  the  contract. 
Otherwise  the  company  will  be  held  strictly  to  the  terms  of  the 
contract  as  applied  to  the  subject-matter.16 

13.  Where  there  is  any  controversy  in  regard  to  the  mode  of 
crossing  highways  and  turnpikes  by  railway  companies,  the  court 
will  refer  the  matter  to  men  of  experience  and  skill  in  such  ques- 
tions.17 

14.  A  permission  in  a  railway  charter  to  cross  a  street  or  high- 
way by  a  level  crossing,  by  making  a  bridge  over  the  street  for  the 
accommodation  of  foot  passengers,  is  not  peremptory  upon  the 
company.  They  may  still  be  permitted  to  cross  the  street  other- 
wise than  on  a  level,  on  their  undertaking  to  abide  by  any  order  the 
court  might  make  as  to  damages.18 

15.  Where  land  is  sold  to  a  railway  company  upon  condition  of 
furnishing  such  farm  accommodations  as  the  land-owner  should 
notify  to  the  company  within  one  month,  time  is  regarded  as  of 
the  essence  of  the  condition,  and  if  notice  is  not  given  within 
the  time  limited  the  court  will  neither  order  the  company  to  make 
such  accommodations  as  are  demanded,  or  even  such  as  are 
proper.19 

14  Trenton  Water  Power  Co.  v.  Chambers,  2  Beasley,  199. 

,G  Clarke  v.  M.  Sh.  &  J,.  Railw.  Co.,  1  Johns.  &  H.  631. 

,T  Atty.-Genl.  v.  Dorset  Railw.  Co.,  3  Law  T.  (N.  S.)  608. 

!~  1  >over  Harbor  v.  L.  C.  &  Dover  Railw.  Co.,  7  Jur.  (N.  S.)  453. 

ondon,  Chatham,  &  Dover  Railw.  Co.,  3  De  G.,  J.  &  S.  24; 
s.  c.  11  Jur.  (X.  S.)  520;  s.  c.  9  id.  148,  where  the  Vice-Chancellor  decided 
other? 


72. 


MODE   OF   PROCEDURE. 


285 


*  SECTION    X. 


Mode  of  Procedure. 


9. 
10. 

11. 
12. 
13. 

14. 


Legislature  may  prescribe. 
Must  be  upon  proper  notice. 
Formal  exceptions  indeed  by  appearance. 
Unless  exception  is  upon  record. 
Proper  parties,  those  in  interest. 
Title  may  he  examined. 
Plaintiffs  must  show  joint  interest. 
Jury  may  find  facts  and  refer  title  to  the 

court. 
Land  must  be  described  in  verdict. 
Distinct  finding  on  each  claim. 
Different  interests. 
What  evidence  competent. 
Proof  of  value  of  land. 
Opinion  of  ivitnesses. 


15.  Testimony  of  experts. 

16.  Matters  incapable  of  description. 

17.  Costs. 

18.  Expenses. 

19.  Commissioners'  fees. 

20.  Appellant  failing  must  pay  costs. 

21.  Competency  of  jurors. 

22.  Power  of  couft  to  revise  proceedings. 

23.  Debt  will  not  he  on  conditional  report. 

24.  Excessive  damages  ground  of  setting  aside 

verdict. 
Note.     Other  matters  of  practice. 

25.  No  effort  to  agree  required  in  order  to  give 

jurisdiction. 

26.  Interest  on  value  from  time  of  taking. 


§  72.  1.  It  seems  to  be  universally  admitted,  that  where  the 
organic  law  of  the  state  does  not  prescribe  the  mode  of  procedure, 
in  estimating  land  damages,  for  the  use  of  a  railway  company, 
or  other  public  work,  it  is  competent  for  the  legislature  to  pre- 
scribe the  mode,  and  that  the  mode,  so  prescribed,  must  be  strictly 
followed.1 

2.  Thus,  it  has  been  held,  that  notice  in  writing  to  the  owner 
of  the  land  to  be  taken,  its  situation  and  quantity,  must  be  given.2 
But  the  form  of  the  notice,  or  whether  signed  by  the  company  or 
by  the  commissioners,  is  not  important.3  And  it  is  requisite,  not 
only  that  proper  notice  should  be  given,  but  that  it  should  appear 
upon  the  face  of  the  proceedings  that  the  particular  notice  re- 
quired by  the  statute  was  given.4  But  in  general,  we  apprehend, 
if  it  appears  upon  the  proceedings  that  notice  was  given  to  the 

1  Bonaparte  v.  C.  &  A.  Railw.,  Bald.  C.  C.  R.  205 ;  Bloodgood  v.  M.  &  H. 
Railw.,  14  Wend.  51 ;  s.  c.  18  id.  9 ;  s.  c.  1  Redf.  Am.  Railw.  Cases,  209. 

2  Vail  v.  Morris  &  Essex  Railw.,  1  Zab.  189.  But  the  notice  to  appoint  com- 
missioners need  not  describe  the  land,  it  is  held  in  other  cases.  Doughty  v. 
Somerville  &  Easton  Railw.,  id.  442. 

3  Ross  v.  Elizabethtown  &  Somerville  Railw.,  Spencer,  230. 

4  Van  Wickle  v.  Railw.  Co.,  2  Green,  162.  See  also  Bennet  v.  Railw.,  id. 
145. 

[*269] 


EMINENT   DOMAIN.  PART  III. 

Land-owner,  it  might,  upon  general  principles,  be  presumed  it  was 
the  notice  required. 

Bui   merely  formal  exceptions  to  the  mode  of  procedure, 
and  the  competency  of  the  triers,  in  such  cases,  must  be  taken  at 
rliest  opportunity,  where  there  is  an  appearance,  or  they  will 
be  regarded  as  waived.6 

4.  Ami  after  appeal,  it  should  appear  by  the  record  that  merely 
formal  exceptions  were  made  in  the  proceedings  below,  and  over- 
ruled, or  they  cannot  be  revised.5  So,  too,  where  the  party,  ex- 
cepting to  proceedings  before  commissioners,  applies  for  a  jury  to 

-  vssment  of  damages,  it  will  be  regarded  as  a  waiver 
of  the  exceptions.5  He  should  have  applied  for  a  certiorari,  if  he 
intended  to  revise  the  case  upon  his  exceptions.5 

5.  in  regard  to  the  proper  parties  to  such  proceedings,  almost 
infinite  variety  of  questions  will  arise.  The  only  general  rule 
which  can  be  laid  down,  perhaps,  is,  that  those  having  an  in- 
terest in  the  question,  may  become  parties  plaintiff,  or  be  made 
parties  defendant,  according  to  the  character  and  quality  of  the 
inter 

6.  h\  the  English  courts,  it  has  been  held,  that  these  summary 
tribunals  for  estimating  land  damages  are  not  to  inquire  into  the 
title  of  the  claimants.7  But  in  some  cases,  in  this  country,  it  has 
been  held,  that  the  claimant's  title  to  the  land  is  a  proper  subject 

&  Fitchburg  Railw.  v.  Boston  &  Maine  Railw.,  3  Cush.  58 ;  s.  c.  1  Am.  Railw. 
:  Walker  v.  Boston  &  Maine  Railw.,  3  Cush.  1 ;  Pittsfield  &  North  Adams 
Railw.  v.  Foster,  1  Cush.  480 ;  Field  v.  Vermont  &  Massachusetts  Railw.,  4  Cush. 
160  :  Taj  lor  v.  <  lounty  Commissioners,  13  Met.  449  ;  Porter  v.  County  Commis- 
sioners, id.  47'J  ;  Meacham  v.  Fitchburg  Railw.,  4  Cush.  291  ;  s.  C.  1  Redf.  Am. 
Railw.  Cases,  276;  Davis  v.  Charles  River  Branch  Railw.,  11  Cush.  506. 

6  Fitchburg  Railw.  v.  Boston  &  Maine  Railw.,  3  Cush.  58 ;  Ashby  v.  Eastern 
Railw.,  5  Met.  368;  Greenwood  v.  Wilton  Railw.,  3  Foster,  261;  Parker  v. 
Boston  &  .Maine  Railw.,  3  Cush.  107;  Mason  v.  Railw.,  31  Me.  215;  A.  &  St. 
I..  Railw.  Co.  v.  Cumberland  Co.  Comm.,  51  .Me.  36.  And  it  seems  to  be  re- 
garded as  indispensable  that  parties  under  disability  should  be  properly  repre- 
sented in  the  proceedings  the  same  as  in  other  suits.  Hotchkiss  v.  Auburn  & 
Rochester  Railw.,  36  Barb.  600.  But  where  a  demand  and  tender  of  the  value 
ol  hind  taken,  together  with  other  legal  damages,  are  required  before  instituting 
compulsory  proceedings,  the  requirement  cannot  apply  to  the  case  of  an  infant, 

i  igbts  will  be  saved  till  of  full  age.     Indiana  Central  Railw.  Co.  v.  Oakes, 
20  Ind.  'J.     Judgment   creditors  not  necessary  parties.     Watson  v.   New  Y. 
d  Railw..  47  X.  Y.  157. 

7  /' 

-'""J 


§  72.  MODE    OF   PROCEDURE.  287 

of  inquiry,  before  the  jury,  in  estimating  damages.8  And  where 
the  commissioners  refuse  to  allow  the  petitioner  damages,  on 
*  account  of  his  not  being  the  owner  of  the  land,  this  is  such  a 
final  decision  as  may  be  revised  by  a  jury,  and  the  Supreme  Court 
will  allow  a  mandamus,  if  that  is  denied.9 

7.  Parties  who  join  must  show  a  joint  interest  in  the  land,  but 
this  need  not  always  be  shown  by  deed.  Oral  evidence  is  some- 
times admissible,  where  one  owns  the  fee,  and  others  have  a  joint 
interest,  in  consequence  of  erections,  and  the  jury  may  properly 
pass  upon  the  title,  as  matter  of  fact.10 

8.  But  the  jury  are  not  bound  to  decide  upon  conflicting  titles, 
but  may  report  the  facts,  without  determining  the  owner.11  And 
it  has  been  held  that  the  jury  are  not  bound  to  find  a  special  ver- 
dict, in  regard  to  the  title  of  the  claimant,  or  where  there  are  con- 
flicting claims,  but  may  do  so  with  propriety.12 

9.  The  jury  should  describe  the  land  with  intelligible  boun- 
daries.13 

8  Directors,  &c.  v.  Railw.,  7  Watts  &  Serg.  236.  Allyn  v.  Prov.  W.  &.  B. 
Railw.,  4  Rhode  Is.  457. 

9  Carpenter  v.  County  Commissioners  of  Bristol,  21  Pick.  258.  The  trustee, 
and  not  the  cestui  que  trust,  is  the  proper  party  to  such  proceeding.  Davis  v. 
Charles  River  Branch  Railw.,  11  Cush.  506.  The  title  of  the  petitioner  may  be 
inquired  into,  either  on  the  return  of  the  petition  or  of  the  report.  Church  v. 
Northern  Central  Railw.  Co.,  45  Penn.  St.  339.  The  mode  of  proceeding  on 
certiorari,  and  in  other  writs,  is  here  discussed. 

10  Ashby  v.  Eastern  Railw.,  5  Met.  368.  So  also  where  the  land  belonged  to 
a  partnership,  and  was  not  needed  for  the  payment  of  partnership  debts,  one  of 
the  partners  having  deceased,  it  was  held  the  title  remained  in  the  partners  as 
tenants  in  common,  and  that  proceedings  to  recover  damages  by  reason  of  laying 
a  railway  upon  it,  were  properly  taken  in  their  joint  names.  Whitman  v.  Boston 
&  Maine  Railw.,  3  Allen,  133. 

11  Matter  of  Anthony  Street,  19  Wend.  678.  So,  too,  where  one  owns  the 
fee,  and  another  has  a  bond  for  a  deed,  the  condition  of  which  is  not  yet  per- 
formed, they  may  join.  Proprietors  of  Locks  and  Canals  v.  Nashua  &  Lowell 
Railw.,  10  Cush.  385. 

12  Davidson  v.  Boston  &  Maine  Railw.,  3  Cush.  91 ;  1  Am.  Railw.  C.  534. 
The  sheriff  is  bound  to  give  the  jury  definite  instructions,  in  regard  to  the  effect 
of  a  conveyance.     lb. 

13  Vail  v.  Morris  &  Essex  Railw.,  1  Zab.  189.  But  see  Philadelphia  Railroad 
V.  Trimble,  4  Whart.  47.  The  jury  are  not  to  include  in  their  estimate  the  ex- 
pense of  farm  accommodations,  which  it  is  the  duty  of  the  railway  to  furnish.  lb. 
But  if  this  be  done,  and  the  party  have  judgment  on  the  verdict,  he  is  bound  to 
make  the  erections.  Curtis  v.  Vermont  Central  Railw.,  23  Vt.  613.  One  tenant 
in  common  cannot  proceed  in  his  own  name  to  have  the  damages  done,  by  a  rail- 

[*271] 


EMINENT    DOMAIN.  PART  III. 

-  LO.  Where  the  claim  for  damages  consists  of  several  items,  it 
is  more  conducive  to  a  final  disposition  of  the  case  to  state  the 
finding  upon  each  item.  In  such  case  any  objectionable  item 
m;iv  be  remitted  or  deducted   without  the  necessity  of  a  rehear- 

II.  Bui  where  the  petition  alleges  several  distinct  causes  of 
damage,  and  a  general  verdict  is  rendered,  if  one  or  more  of  the 
3  is  insufficient,  it  will  not  be  presumed  the  jury  gave  any 
damages,  on  such  insufficient  claims,  in  the  absence  of  any  instruc- 
by  the  sheriff  in  relation  to  them.15  But  it  is  not  necessary 
to  apportion  the  damages  to  several  joint-owners,  and  a  tenant 
for  life  may  lake  proceedings  to  obtain  damages  done  to  his  estate 
by  the  construction  of  a  railway,  without  joining  the  remainder- 


man 


10 


12.  The  character  of  the  proof  admitted  to  enable  the  triers  to 
learn  the  value  of  land  is  so  various,  that  it  is  not  easy  to  fix  any 
undeviating  rule  upon  the  subject.  It  seems  to  have  been  the  in- 
tention of  the  courts  to  allow  only  strictly  legal  evidence  to  be 
red,  such  as  would  be  admissible  in  the  trial  of  similar  ques- 
tions before  a  jury  in  ordinary  cases.17 

It  has  been  allowed  to  show  what  price  the  company  had 
paid  by  voluntary  purchase  for  land  adjoining,  but  in  the  same 
i  was  held  not  competent  to  inquire  of  adjoining  land-own- 
way,  to  the  common  land,  assessed  even  where  he  has  authority  from  his  co-tenant 
to  do  so.     Railw.  r.  Bucher,  7  AVatts,  33. 

But  if  the  petition  be  signed  by  the  lessee  and  the  agent  of  the  owner  of 
this  is  a.  sufficient  representation  of  the  interest.  Harvey  v.  Lioyd,  3 
Penn.  St.  331.  See  also  Shoenberger  v.  Mulhollan,  8  Penn.  St.  134.  See  also 
Cleveland  &  Toledo  Railw.  v.  Prentice,  13  Ohio  (N.  S.),  373;  Strang  v.  Beloit 
&  M.  Railw.  Co.,  16  Wis.  035.  It  is  here  said  that  the  description,  by  way  of 
an  approximating  diagram,  may  be  sufficient  without  an  actual  survey. 

14   Fitchburg   Railw.  v.  Boston  &  Maine  Railw.,  3  Cush.  58;    s.  c.  1  Am. 

1  .  ."-08. 
]i  Parker      B(    ton  &  .Maine  Railw.,  3  Cush.  107. 

road  v.  Boyer,  13  Penn.  St.  497 ;  Directors  of  Poor  v.  Railw.,  7  Watts 
286;  Pittsburgh  &  Steuben  Railw.  v.  Hall,  25  Penn.  St.  336.     In  one 
ud  to  be  the  duty  of  the  commissioners  to  assess  damages  to  joint 
s  v.   Elizabethtown  &  Somerville  Railw.,   Spencer,  230. 
Ii  v.  Nashville  &  X.  W.  Railw.  Co.,  2  Head,  171. 
oy  &   Boston  Railw.  v.  Northern  Turnpike  Co.,  16  Barb.  100;  Johnson, 
J.,  in   Rochester  &  Syracuse  Railw.  v.  Budlong,  6  How.  Pr.  467;   Lincoln  v. 
Sarafc  aectady  Railw.,  23  Wend.  425,  432. 

[*272] 


§  72.  MODE    OF   PROCEDURE.  289 

ers,  who  were  farmers,  and  had  occasionally  bought  and  sold 
land,  what  was  the  value  of  their  own  laud  adjoining.18  Nor  is 
*  it  competent  to  show  for  what  price  one  had  contracted  to  buy 
land  adjoining.19  Nor  can  the  claimant  prove,  what  the  com- 
pany have  offered  him  for  the  land  ; 20  nor  what  the  company 
have  been  compelled  to  pay  for  land  adjoining,  which  was  taken 
compulsorily.21 

18  Wyman  v.  Lexington  &  West  Cambridge  Kailw.,  13  Met.  316.  But  in 
Robertson  v.  Knapp,  35  N.  Y.  91,  it  was  held,  that  farmers  and  residents  of  the 
immediate  neighborhood  are  competent  to  fix  the  price  of  land  in  their  vicinity ; 
one  who  bad  been  a  farmer,  but  had  changed  Lis  occupation  to  that  of  a  mechanic, 
was  nevertheless  held  a  competent  witness  to  testify  to  the  value  of  land  in  the 
neighborhood.  And  in  Shattuck  v.  Stoneham  Branch  Railw.,  6  Allen,  115,  it 
was  held,  that  in  such  proceedings  the  land-owner,  being  a  competent  witness, 
may  testify  to  his  opinion  of  the  amount  of  damage  which  he  has  sustained,  and 
may  prove  recent  sales  of  other  lands  in  the  vicinity,  similarly  situated,  and 
about  the  same  time  ;  but  he  cannot  give  evidence  of  the  opinions  of  others,  as 
to  the  value  of  other  lands  in  the  vicinity.  But  it  is  rather  matter  of  discretion 
with  the  court,  whether  sales  of  other  lands  were  sufficiently  recent,  or  the  land 
sufficiently  like  that  in  question,  to  afford  aid  to  the  jury.  And  on  such  hearing 
the  company  may  prove  that  they  have  located  a  passenger  station,  since  the 
hearing  began,  near  the  petitioner's  land  over  which  the  railway  passed. 

19  Chapin  v.  Boston  &  Providence  Railw.,  6  Gush.  422. 
80  Upton  v.  South  Reading  Railw.,  8  Cush.  600. 

21  White  v.  Fitchburg  Railw.,  4  Cush.  440.  Only  such  damages  as  are  pecu- 
liar to  the  owner  of  the  land  taken,  and  not  those  which  are  common  to  all  land 
in  the  vicinity,  can  be  considered.  Freedle  v.  North  Carolina  Railw.,  4  Jones 
Law,  89.  It  has  been  held  that  the  benefits  resulting  to  the  land-owner  from 
the  construction  of  the  road  are  to  be  deducted,  in  estimating  damages  for  land 
taken  for  a  railway  ;  and  that  consequently  a  statute  providing  for  such  deduc- 
tion is  not  thereby  rendered  unconstitutional.  C.  P.  &  Ind.  Railw.  v.  Simpson, 
5  Ohio  (N.  S.),  251.  But  as  the  constitution  of  this  state  expressly  required  that 
compensation  to  the  land-owner  should  be  made  in  all  cases  when  land  is  taken 
for  public  use  in  money,  it  seems  scarcely  consistent  to  say  that  the  benefits  to 
the  land-owner  can  in  all  cases  be  deducted,  since  in  some  cases  the  benefits  to 
the  particular  piece  of  land,  a  portion  of'  which  is  taken,  might  more  than  com- 
pensate for  that  Avhich  is  taken,  thus  leaving  nothing  to  be  compensated  "  in 
money."  The  force  of  this  embarrassment  was  felt  by  the  court  in  a  highway 
case  in  Vermont,  where  the  constitution  requires,  that  "  whenever  private  prop- 
erty is  taken  for  public  use,  the  owner  ought  to  receive  an  equivalent  in  money." 
.The  court  escaped  from  the  embarrassment  here  by  a  device,  which  some  might 
possibly  regard  as  more  ingenious  than  ingenuous,  by  saying,  that  as  the  consti- 
tution only  applied  to  property  "  taken  for  public  use,"  this  could  not  reach  cases 
where  only  an  easement  in  property  was  taken.  The  court  might,  with  almost 
equal  propriety,  have  said,  that  the  provision  of  the  constitution  "ought  to  re- 
ceive," being  in  the  optative  mood,  did  not  imply  an  imperative  duty,  as  few  per- 
vol.  i.  19  [*273] 


EMINENT    DOMAIN.  PART  III. 

•  1  I.  And  it  has  been  held  that  witnesses  cannot  be  allowed  to 
their  opinion  of  the  value  of  the  land  or  materials  taken.22 
This  inquiry  leads  to  the  discussion  of  the  general  question,  of 
whai  matters  may  l)e  proved,  by  the  opinion  of  witnesses  who  are 
Dot  possessed  of  any  peculiar  knowledge,  skill,  or  experience  upon 
the  subject. 

15.  And  it  must  be  admitted  the  cases  are  not  altogether  recon- 
cilable  upon  the  subject.  Experts  are  admitted  to  express  their 
opinions,  not  only  upon  their  own  observation,  but  upon  testimony 
given  in  court,  by  other  witnesses,  and  where  the  testimony  is 
conflicting,  upon  a  hypothetical  state  of  facts.23  The  testimony  of 
such  witnesses  is  intended  to  serve  a  double  purpose,  that  of 
instruction  to  the  jury  upon  the  general  question  involved,  and 
elucidation  of  the  particular  question  to  be  considered  by  them.23 
The  resort  to  the  assistance  and  instruction  of  persons  skilled 
in  particular  departments  of  art  or  science  is  constantly  adverted 
to,  as  of  great  advantage  in  enabling  the  triers  to  properly  corn- 
sons  expect  to  obtain  by  process  of  law  all  which  they  "ought  to  receive." 
Livennore  v.  Jamaica,  23  Vt.  361,  Redjidd,  J.  dissenting,  sub  silentio.  Ante, 
§  71,  pi.  6.  See  also  C.  &  P.  Railw.  v.  Ball,  5  Ohio  (N.  S.),  568;  Kramer  v. 
Clev.  &  Pittsb.  Railw.,  id.  140. 

Montgomery  &  West  Point  Railway  v.  Varner,  19  Ala.  185;  Concord 
Railway  r.  Greely,  23  N.  H.  237;  Buffum  v.  New  York  &  Boston  Railway, 
4  U.  1.  221;  Cleve.  &  Pittsb.  Railway  v.  Ball,  5  Ohio  (N.  S.),  568.  But  the 
witness  may  give  an  opinion  as  to  the  value  of  the  whole  land,  both  before  and 
after  the  location  of  the  road.  lb.  And  so  also  in  Illinois  &  Wisconsin  Rail- 
way v.  Van  Horn,  18  111.  257.  See  also  Dorian  v.  E.  Br.  &  Way.  Railw.  Co., 
46  I1'  mi.  St.  520.  In  a  case  in  Pennsylvania  (East  Penn.  Railway  Co.  v. 
Hiester,  40  Penn.  St.  53),  it  is  said  that  the  only  proper  test  of  the  value  of 
land  bo  taken  is  the  opinion  of  witnesses  as  to  the  value  of  the  land  taken,  in 
view  of  its  location  and  productiveness,  its  market  value,  or  the  general  selling 
jin  e  of  land  in  the  neighborhood.  And  this  seems  to  us  exceedingly  sensible 
and  tree  from  refinement  or  conceit.  See  also  Same  v.  Hottenstine,  47  Penn. 
St.  28. 

rreenleaf  Ev.  §  440.    Thus  the  testimony  of  persons  employed  in  making 
insurance  of  buildings  against  fire,   may,  in  actions  against  railways  for  conse- 
ntial  damages  to  buildings,  by  the  near  approach  of  the  track,  express  their 
opinion   of  the  effect  thereby  produced  upon  the  rent,  or  the  rate  of  insurance 
ich  buildings.     Webber  v.  Eastern  Railw.,  2  Met.  147.     See  also  Henry  v. 
ique  &  Pacific  Railw.,  2  Clarke,  288.     And  in  the  case  of  Brown  v.  Provi- 
dence, W  arren,   &  Bristol  Railw.,  5  Gray,  35,  it  was  held,  that  the  company 
could  not  Bbow  that  liquors  were  sold,  or  to  be  sold,  upon  land,  as  a  part  of  the 
indui  en  ent  to  pay  so  high  a  rent,  or  that  it  was  "contemplated"  having  a  station 
near  the  point ;  such  testimony  being  too  indefinite  and  remote. 

[•274] 


§  72.  MODE   OF   PROCEDURE.  291 

prehend  those  subjects  out  of  the  range  of  their  general  knowledge, 
*  or  the  particular  studies  of  judges,  or  jurors,  in  some  of  the  best- 
considered  English  cases,  within  the  last  few  years.24  But  the 
testimony  of  scientific  witnesses  will  not  establish  facts  in  con- 
flict with  the  axiomatic  principles  of  science  and  philosophy,  or 
those  which  contradict  the  evidence  of  the  senses,  or  of  con- 
sciousness.24 

16.  But  there  is  certainly  a  very  considerable  number  of  sub- 
jects, in  regard  to  which  the  jury  are  supposed  to  be  well  instructed, 
and  altogether  capable  of  forming  correct  opinions,  and  in  regard 
to  which  the  testimony  of  experts  is  not  competent,  or  not  requi- 
site, but  which  it  is  more  or  less  difficult  for  the  witnesses  to 
describe  accurately,  so  as  to  place  them  fully  before  the  minds  of 
the  jury,  as   they  exist  in  the  minds  of  the  witnesses.     Among 
these  are  inquiries  in  regard  to  the  extent  of  one's  property,  sol- 
vency, health,  affection,  or  antipathy,  character,  sanity,  and  some 
others.     In  such  cases  the  witnesses'  knowledge  is  chiefly  matter 
of  opinion,  and  it  is  impossible  to  enumerate  each  particular  fact. 
Of  this  character   seem  to  us  to  be  questions  in  regard  to  the 
quality  and  value  of  property.     One  may  enumerate  some  of  the 
leading  facts  upon  which  such  an  opinion  is  based ;  but  after  all, 
the    testimony,'  as  to  facts,  is  excessively    meagre,  without   the 
opinion  of  the  witness,  either  upon  the  very  subject  of  inquiry,  or 
some  one  as  near  it  as  can  be  supposed.     Hence  in  those  courts 
where  the  opinion  of  witnesses,  in  regard  to  the  value  of  property, 
real  or  personal,  is  not  admitted,  it  leads  to  sundry  shifts  and 
evasions,  in  the  course  of  the  examination  of  witnesses  upon  that 
subject,  which,  while  it  is  not  a  little  embarrassing  in  itself,  at  the 
same  time  illustrates  the  inconsistency,  not  to  say  absurdity,  of 
the  rule.25 

84  Broadbent  v.  Imperial  Gas  Co.,  7  De  G.,  M.  &  G.  486,  4C6,  opinion  of  Lord 
Chancellor  Cranworth. 

25  Opinion  of  the  court  in  Concord  Railw.  v.  Greely,  23  N.  H.  237.  "  A  wit- 
ness may  state  what  was  the  cost  of  property  of  a  particular  description  at  a 
given  place,  in  order  to  ascertain  the  value  of  property  of  a  similar  description. 
Whipple  v.  Walpole,  10  N.  H.  130.  But  evidence  of  the  price  for  which  the 
corporation  offered  to  sell  a  tract  adjoining  Greely's,  and  how  much  they  refused 
to  take  for  it,  is  certainly  of  doubtful  competency.  We  have  held  at  this 
term,  in  the  case  of  Ilersey  v.  The  Merrimack  County  Mutual  Fire  Insurance 
Company,  in  Merrimack  county,  that  what  the  owner  of  a  piece  of  real  estate 
said  he  would  sell  the  same  for,  was  competent  evidence  against  him,  as  tending 

[*275] 


292  EMINENT   DOMAIN.  PART  III. 

•IT.  In  regard  to  costs,  in  such  proceedings,  the  more  general 
rale  i-  D01   to  allow  them,  unless  specifically  given  by  statute.26 

..  its  value.     But  thai  was  a  statement  in  regard'to  the  value  of  the  land 
while  the  evidence  admitted  here  was  going  one  step  further;  it  was  a 
Btatemenl  in  regard  to  other  lands;  and  it  is  quite  questionable  whether  it  could 
bave  any  legitimate  tendency  to  prove  the  value  of  Greely's  land. 

••  ( )n  questions  of  science,  skill,  or  trade,  or  others  of  a  like  kind,  experts  may 
not  onh  testify  to  tacts,  but  are  permitted  to  state  their  opinions.     1  Greenl.  Ev. 

5  UO.     But  upon  subjects  of  general  knowledge,  which  are  understood  by  men 
in  general,  and  which  a  jury  are  presumed  to  be  familiar  with,  witnesses  must 

as  to  facts  alone,  and  the  jury  must  form  their  opinions.  In  such  cases, 
the  testimony  of  witnesses,  as  experts  merely,  is  not  admissible." 

It  an  inquiry  arose  in  regard  to  the  value  of  a  cargo  of  flour,  it  would  cer- 
tainly  sound  Btrange  to  hear  witnesses  testify  what  precisely  similar  flour  is 
worth,  and  at  the  same  time  be  gravely  told,  that  they  were  studiously  to  avoid 

iing  any  opinion  of  the  value  of  this  very  flour,  which  they  had  seen  and 
examined,  and  in  regard  to  which  the  whole  testimony  was  received.     Yet  such 
i-,  from  necessity,  the  course  resorted  to,  under  the  rule.     The  more  general 
course  is,  we  think,  to  receive  the  opinion  of  witnesses,  acquainted  with   the 
property  and  the  state  of  the  market,  as  to  the  value  of  the  particular  property 
in  question.     White  V.  Concord  Railw.,  10  Foster,  188.     But  in  New  Hamp- 
shire, in  a  late  case,  it  is  held  that  the  opinion  of  witnesses,  in  regard  to  apparent 
health,  i-  competent  to  be  given;  and  this  seems  to  be  yielding  the  main  point 
-in  before  insisted   upon.      Spear  v.  Richardson,   84  N.  H.   428.     In 
se  the  opinion  of  witnesses,  whether  a  horse  was  sound,  or  had  a 
particular  disease,  the  heaves,  was  excluded  because  the  witness  was  not  shown 
to  be  an  expert.     We  are  not  surprised  that  the  judge  regarded  the  distinction 
.(■what  nice."     And  in  Currier  v.  Boston  &  M.  Railw.,  34  N.  H.  498, 

beld  that  a  witness  could  give  an  opinion  in  regard  to  the  occurrence  of 
bardpan  in  an  excavation  ;  and  in  Hackett  v.  Boston,  Con.  &  Mont.  R.,  35 
N.  II.  390,  it  was  held  that  a  witness  might  express  an  opinion  in  regard  to 
distances,  dimensions,  and  qualities.    See  also  Roch.  and  Sy.  Railw.  v.  Budlong, 

6  How.  Pr.  467. 

In  Illinois  v.V  Wisconsin  Railw.  v.  Van  Horn,  18  Illinois,  257,  it  is  held 
that  it  is  proper  to  have  the  opinion  of  witnesses  in  regard  to  the  value  of  city 


w  Her!  ein  ,-.  The  Railroad,  'J  Watts,  272.    The  English  statute,  8  Vict.  c.  18, 

thai  where  the  land-owner  refuses  an  offer  equal  or  exceeding  his  recov- 

,r.v  •  '■■  >ver  no  costs.     This  is  construed  to  embrace  all  offers  up  to  the 

land-owner  taking  steps  to  have  his  case  tried.     Lord  Fitzllardinge 

•    G    &   B.  <;li,,l  Co.,  20  W.  K.  800.     The  party  taking  the  initiative  in  pro- 

timate  land  damages  under  this  statute  is  required  to  state  at  what 

price  lie  will  Bell  or  purchase  the  land,  and  then  the  other  party  is  at  liberty  to 

...    modify  the  offer,  and  costs  are  awarded  with  reference  to  the  party 

assessment  better  for  him  than  the  offer  of  the  other  party.     This 

us  just  and  reasonable,  upon  general  principles,  independent  of  the  statute. 

[•276] 


§  72.  MODE   OF   PROCEDURE.  293 

*  But  where  the  statute  provides  for  an  assessment  of  land  dam- 
ages, by  a  jury,  at  the  suit  of  the  party  aggrieved,  the  costs  to  be 
paid  by  the  company,  this  was  held  not  to  include  the  fees  of 
witnesses  examined  by  the  jury,  on  the  part  of  the  claimant.27 

18.  But  the  terms  "  costs  and  expenses  incurred,"  were  held 
to  include  the  costs  of  witnesses,  and  of  summoning  the  viewers.28 

19.  If  the  act  makes  no  provision  for  compensation  to  the  com- 
missioners, they  have  no  power  to  order  the  company  to  pay  the 
cost  of  their  expenses  and  services.29 

20.  But  where  the  party  whose  costs  are  rightfully  denied  in 
the  Court  of  Common  Pleas,  appeals  upon  that  question,  and  the 
judgment  is  affirmed,  he  must  pay  costs  to  the  other  party,  conse- 
quent upon  the  appeal.30 

lots,  "as  they  have  no  stated  value."  Skinner,  J.,  said:  "To  describe  to  a 
jury  a  piece  of  ground,  however  minutely,  with  its  supposed  adaptations  to  use, 
advantages  and  disadvantages,  and  demand  of  them,  upon  this  information  alone, 
a  verdict  as  to  its  value,  would  be  merely  farcical ;  and  this,  indeed,  is  all  that 
can  be  done  to  enable  them  to  arrive  at  a  conclusion  as  to  the  value,  unless  the 
witnesses  are  allowed  to  state  their  judgment  or  opinion,  together  with  the  facts 
upon  which  such  opinion  is  founded.  Butler  v.  Mehrling,  15  111.  488 ;  Kel- 
logg v.  Krauser,  14  Serg.  &  Rawle,  137."  In  Cleve.  &  Pittsb.  Railvv.  v.  Ball, 
5  Ohio  (N.  S.),  568,  it  is  said,  witnesses  maybe  allowed  to  express  an  opinion  as 
to  the  value  of  the  land  taken,  but  not  as  to  the  extent  of  damages  whicli  the  land- 
owner will  sustain  by  the  appropriation  of  the  land  to  public  use,  that  being  the 
very  question  to  be  settled  by  the  triers.  This  seems  to  us  placing  the  matter 
upon  its  proper  basis.  One  must  have  had  experience  in  regard  to  the  particu- 
lar point,  as  laying  a  railway  over  a  wharf,  in  order  to  give  an  opinion  of  the 
extent  of  the  injury  caused  thereby,  and  it  is  not  sufficient  that  he  may  have 
had  experience  and  skill  in  other  matters  pertaining  to  the  building  and  opera- 
tion of  railways.  Boston  &  Worcester  Railw.  v.  Old  Colony  &  F.  R.  Railw.,  3 
Allen,  142.  The  court  in  this  case  declined  to  set  aside  the  verdict  for  land 
damages,  because  testimony  of  the  sale  of  upland  at  a  considerable  distance 
from  the  wharf,  and  of  the  price  paid  four  months  before  the  time  of  making 
the  location,  was  received,  and  also  of  the  number  of  trains  passing  over  the 
land  taken,  and  of  the  number  of  vessels  and  amount  of  lumber,  wood,  and  coal, 
&c,  coming  to  the  wharf. 

27  Railroad  v.  Johnson,  2  Wharton,  275. 

28  Penn.  Railroad  v.  Keiffer,  22  Penn.  St.  356 ;  Chicago  &  Mont.  Railw.  ». 
Bull,  20  Illinois,  218. 

29  At.  &  St.  L.  Railroad  v.  The  Commissioners,  28  Maine,  112. 

30  Harvard  Branch  Railw.  v.  Rand,  8  Cush.  218;  Commonwealth  v.  Bos- 
ton &  Maine  Railw.,  3  Cush.  56.  But  see  §  71,  note  12,  ante,  in  regard  to 
the  course  of  proceeding,  in  estimating  land  damages.  Where  the  statute  gives 
an  appeal,  in  estimating  land  damages,  to  a  court  of  common-law  jurisdiction, 
and  does  not  prescribe  the  mode  of  trying  the  appeal,  it  will  be  tried  by  com- 

[*277] 


294  EMINENT    DOMAIN.  PART  III. 

21.  it  is  no  objection  to  the  competency  of  a  juror,  in  this  class 
of  cases,  that  he  had  been  an  appraiser  of  damages  upon  another 
railway,  in  the  same  county,  or  that  he  is  a  stockholder  in  another 
railway  which  had  long  before  acquired  the  lands  necessary  for 

its  us 

Courts  do  not  generally  possess  the  power  to  revise  the 
issmeni  of  land  damages,  by  a  jury  or  other  tribunal  appointed 
by  them  for  that  purpose,  upon  its  merits,  and  set  it  aside,  upon 
the  mere  ground  of  inadequacy,  or  excess  of  damages.32 

23.  Where  commissioners  assessed  land  damages  at  a  sum 
named,  and  stated  further,  that  the  plaintiff  was  to  receive  an 
additional  sum  in  a  certain  contingency,  and  the  report  became 
matter  of  record,  it  was  held  that  debt  would  not  lie,  for  the 
additional  sum,  upon  averring  the  happening  of  the  contin- 
gency. 

24.  Where  the  statute  gave  the  court  a  discretion,  to  accept  and 
confirm  the  inquest  of  land  damages,  or  order  a  new  inquest,  "  if 
justice  shall  seem  to  require  it,"  it  was  held  they  might  set  aside 
the  report  for  mere  excess  of  damages,  and  that  the  Supreme 
( 'ourt  might  do  the  same,  when  the  proceedings  are  brought  up  by 
certiorari.^ 

mi-.-ioners,  that  being  the  usual  course  of  trying  cases  of  that  class,  in  common- 
law  courts.     And  a  statute  requiring  parties  to  be  allowed  a  trial  by  jury,  in  all 
ea  proper  for  a  jury,  will  not  alter  the  mode  of  trying  such  appeals.     Gold  v. 
Vt.  Centra]  Railw.,  19  Vt.  478. 

31  People  v.  First  Judge  of  Columbia,  2  Hill  (N.  Y.),  S9S.  The  tribunal 
for  assessing  land  damages  should  be  free  from  interest  or  bias  in  order  to  meet 
the  constitutional  requirement  for  just  compensation.  Powers  v.  Bears,  12  Wis. 
218.  Bui  Bee  Strang  v.  Beloit  &  M.  Railw.  Co.,  16  Wis.  635.  But  where  it 
clearly  appears  that  injustice  has  been  done  through  some  mistake  or  misappre- 
hension of  the  jury,  the  verdict  should  be  set  aside.  Cadmus  v.  Central  Railw., 
2  Vr  iom,  179. 

Willing  v.  Baltimore  Railw.,  5  Whart.  460.  As  to  what  is  good  cause  for 
ig  aside  tin-  report  of  commissioners,  see  Bennet  v.  Railw.,  2  Green,  145; 
Van  Wickle  V.  Same,  id.  162;  R.  &  S.  Railw.  v.  Budlong,  6  How.  Pr.  467. 
In  Missouri,  when  the  report  oi  commissioners  is  set  aside,  the  court  must  ap-' 
poinl  a  new  board.  Hannibal  &  St.  Joseph  Railw.  Co.  v.  Rowland,  29  Mo.  337. 
I '.nt  this  rule  will  not  apply  where  the  report  is  recommitted  to  the  same  board, 
with  instructions  to  pursue  a  different  rule  in  estimating  damages.     lb. 

W.  &   1'.  Railroad  Co.  v.  Washington,  1  Robinson  (Va.),  67.     See  also 
Dimick  v.  Brooks,  21  Vt.  569. 

;  Pennsylvania  Railw.  v.  Ileister,  8  Penn.  St.  445;  Same  v.  McClure,  ib.  ; 
< .  Riley,  ib. ;  Same  cases,  2  Am.  Railw.  C.  337. 

[*278J 


72.  MODE   OF   PROCEDURE.  295 


OTHER   MATTERS    OF   PRACTICE,    IN   REGARD    TO    ASSESSING   LAND   DAMAGES. 

All  the  commissioners  must  be  present  and  act,  in  all  matters  of  a  judicial 
character.  Crocker  v.  Crane,  21  Wend.  211 ;  s.  c.  1  Redf.  Am.  Railw.  Cases, 
42.  In  regard  to  the  mode  of  selecting  and  impanelling  juries,  for  assessing 
land  damages  against  railways,  the  following  cases  may  be  referred  to :  Penn. 
Railw.  v.  Heister,  8  Penn.  St.  445,  which  decides  that  where  the  statute  requires 
the  sheriff  to  summon  the  jury,  it  is  irregular  for  him  to  select  them  from  a  list 
prepared  by  his  deputy;  and  Vail  v.  Morris  &  Essex  Railw.,  1  Zab.  189,  where 
it  is  held,  that  commissioners  appointed  to  value  the  land  of  E.  V.  upon  one 
route,  adopted  by  the  company,  cannot  appraise  the  land  of  the  same  person, 
when  the  company  adopt  a  different  route,  across  the  land. 

In  regard  to  the  right  of  appeal,  which  is  given  in  terms  to  the  party  aggrieved, 
it  has  been  held  to  extend  to  the  railway  company,  as  well  as  the  land-owner. 
Kimball  r.  Kennebec  &  Portland  Railw.,  35  Maine,  255. 

No  appeal  lies  from  the  order  of  the  Supreme  Court,  confirming  the  report  of 
commissioners  on  the  appraisal  of  land  damages  for  land  taken  under  the  general 
railway  act.  The  act  provides  for  no  such  appeal  to  the  Court  of  Appeals,  and 
the  remedy,  in  the  act,  is  intended  to  be  exclusive.  And  besides,  the  Supreme 
Court  exercise  a  discretion,  to  some  extent,  in  confirming  such  reports,  and  ap- 
peals will  not,  upon  general  principles,  lie  to  revise  such  adjudications.  New 
York  Central  Railw.  v.  Marvin,  11  N.  Y.  276 ;  Troy  &  Boston  Railw.  v.  North- 
ern Turnpike  Co.,  16  Barb.  100. 

Where  the  special  act  of  a  railway  company  required  them  to  give  the  land- 
owner ten  days1  notice  of  the  time  when  a  jury  would  be  drawn  to  assess  dam- 
ages, it  was  held  that  a  strict  compliance  with  this  requirement  was  indispensable 
to  give  jurisdiction,  and  that  the  objection  was  not  waived  by  appearance  before 
the  officer  at  the  time  the  jury  were  drawn,  and  objecting  to  the  regularity  of 
the  proceedings,  without  stating  the  grounds,  or  by  appearing  before  the  jury, 
when  they  met  to  appraise  the  damages,  and  objecting  to  one  of  them,  who  was 
set  aside.     Cruger  v.  The  Hudson  River  Railw.,  12  N.  Y.  190. 

Mere  informalities  in  the  summons,  which  do  not  mislead  the  company,  will 
not  avoid  the  proceeding.  Eastham  v.  Blackburn  Railw.,  9  Exch.  758  ;  s.  c.  25 
Eng.  L.  &  Eq.  498. 

It  is  not  important  that  the  award  should  specify  the  finding  upon  the  separate 
items  of  claim.     In  re  Bradshaw,  12  Q.  B.  562. 

Where  the  special  act  of  a  railway  company  prescribes  a  different  mode  of 
procedure,  in  condemning  land,  from  that  required  by  a  general  law  of  the  state, 
subsequently  passed,  the  company  may  pursue  the  course  prescribed  by  their 
special  act.  Clarkson  v.  Hudson  River  Railw.,  12  N.  Y.  304.  But  it  seems  to 
be  here  considered,  that  the  company  may  adopt  the  course  prescribed  by  the 
general  act,  if  they  so  elect.  And  upon  general  principles  it  would  seem  that 
they  should  do  so,  unless  there  is  something  in  the  general  act  by  which  the 
existing  railways  are  at  liberty  to  proceed  under  their  charters.  This  is  the 
ground  of  the  decision  in  the  last  case.     North  Mo.  Railw.  v.  Gott,  25  Mo.  540. 

Where  the  company's  special  act  vests  specific  and  special  powers  in  them, 

[*278J 


EMINENT   DOMAIN. 


PART  III. 


It  does  not  scorn  important,  where  the  statute  in  terms 
allows  either  party  to  take  compulsory  proceeding  to  assess  land 
damages  upon  the  parties  failing  to  agree,  that  there  should  have 
beeu  any  previous  attempt  to  agree,  in  order  to  give  jurisdiction  to 
the  courts  to  assess  the  amount  of  such  compensation.35 

26.  I!  has  been  decided  that  where  land  is  taken  for  a  railway, 
the  owner  is  entitled  to  recover  damages  assessed,  as  of  the  time 
0    taking,  with  interest  thereon  to  the  time  of  the  assessment.36 


♦SECTION     XL 


Tlie  Time  Compensation  to  be  made. 


1.  0/  ding. 

2.  Cham         Kent? s  definition. 
;!.   Thai  of  the  Code  Napoleon. 

ilutions  require  it  to  be  con- 
taking, 
lish  rases  do  not  require  this. 


6.  Adequate  legal  remedy  sufficient. 

7.  Where  required,  payment  is  requisite  to 

vest  the  title. 

8.  Some  states  hold  that  no  compensation  is 

requisite. 


§73.  1.  In  general,  railway  acts  require  compensation  to  be 
made,  before  the  company  take  permanent  possession  of  the  land.1 
And  it  has  even  heen  made  a  question,  in  this  country,  whether 
the  legislature  could  give  a  railway  company  authority  to  take 
permanent  possession  of  lands,  required  for  their  use,  previous  to 
making  or  tendering  or  depositing,  in  conformity  with  their 
charter  or  the  general  law,  compensation  for  the  same.2 


for  the  benefit  of  the  public  (as  to  build  stations  of  given  dimensions  larger  than 
leral   act  provides),   it  is  not   controlled   by  subsequent   general  acts. 
I  Blacl  wall  Railw.  v.  Board  of  Works,  3  Kay  &  J.  123 ;  s.  c.  28  Law 

I  ,140.  In  regard  to  the  mode  of  proceeding  in  such  cases,  see  Coster"  v. 
N  •'  I:  lilw.  &  Tr.  Co.,  4  Zab.  730;  Green  v.  Morris  &  Essex  Railw.,  id.  486; 
i         i  Id  &  North  Adams  Railw.  v.  Foster,  1  Cush.  480. 

low  r.  Miss.  Central  &  Tenn:  Railw.  Co.,  2  Head,  624. 
M  Ree  I  0.  Hanover  Branch  Railw.,  105  Mass.  303. 

1  L  Clauses  Consolidation  Act,  8  Vict.  c.  18,  §  84  et  seq.  •  Ramsden  v. 

Ml'"';  3   •'•  lV-'  A-  Railw.,  1  Exch.  723;  s.  c.  5  Railw.  C.  552.     In  such 

of  equity  will  enjoin  the  company  from  taking  possession  until  com- 

ition    s  made,  unless  the  owner  consent.     Ross  v.  E.  T.  &  S.  Railw  ,  1 

G  '  i,.  422. 

'  ■  Grand  Gulf  Railw.  Co.,  3  Howard  (Miss.),  240.     The  consti- 

[♦279,280] 


§  73.  THE   TIME    COMPENSATION   TO    BE    MADE.  297 

2.  The  learned  and  sensible  author  of  the  Commentaries  on 
American  Law 3  thus  states  the  rule  upon  this  subject :  "  The 
settled  and  fundamental  doctrine  is,  that  government  has  no  right 
to  take  private  property,  for  public  purposes,  without  giving  just 
compensation  ;  and  it  seems  to  be  necessarily  implied,  that  the 
indemnity  should,  in  cases  which  will  admit  of  it,  be  previously 
and  equitably  ascertained,  and  be  ready  for  reception,  concurrently, 
in  point  of  time,  with  the  actual  exercise  of  the  right  of  eminent 
domain." 

3.  The  language  of  the  Code  Napoleon4  is  specific  upon  this 
point :  "  No  one  can  be  compelled  to  give  up  his  property  except 
*  for  the  public  good,  and  for  a  just  and  previous  indemnity."  A 
similar  provision  existed  in  the  Roman  civil  law. 

4.  It  is  embodied,  in  different  forms  of  language,  into  the  writ- 
ten constitutions  of  most  of  the  American  states,  but  not  generally, 
in  terms  requiring  the  indemnity  concurrently  with  the  appropria- 
tion. But  practically  that  view  has  generally  prevailed  in  the 
courts.5 

tution  of  this  state,  however,  requires  a  previous  compensation  to  be  made.     See 
also  Cusbman  v.  Smith,  34  Maine,  247. 

8  2  Kent,  Comm.  340  (7th  ed.),  393,  and  note.  The  Milwaukee  &  M.  Railw. 
Co.  v.  Eble,  4  Chandler,  72 ;  Cushman  v.  Smith,  34  Maine,  247. 

4  Code  Napoleon,  Book  II.  Title  II.  545. 

6  Lyon  v.  Jerome,  26  Wend.  485,  497  ;  Opinion  of  Sutherland,  J.,  Case  v. 
Thompson,  6  Wend.  634.  In  this  case  it  was  held,  that  it  was  not  indispensable  to 
the  opening  of  a  road  over  the  land  of  an  individual,  that  the  price  should  be  paid 
or  assessed  even,  before  the  opening  of  the  road.  And  in  Bonaparte  v.  C.  &  A. 
Railw.  Co.,  1  Bald.  C.  C.  205,  216,  it  was  held,  that  a  law  taking  private  property 
without  providing  for  compensation  was  not  void,  for  it  was  said,  that  may  be  done 
by  a  subsequent  law.  But  the  appropriation  was  enjoined,  in  that  case,  till  com- 
pensation should  be  made.  See  also  Gardner  v.  The  Village  of  Newburgk,  2  Johns. 
Ch.  162;  Henderson  v.  The  Mayor,  &c.  of  New  Orleans,  5  Miller's  Louis.  416 ; 
Rogers  v.  Bradshaw,  20  Johns.  735  ;  Duncan,  J.,  in  Eakin  v.  Raub,  12  Serg.  &  R. 
330,  366,  372  ;  OTIara  v.  Lexington  Railw.,  1  Dana,  232  ;  Hamilton  v.  Annapolis 
&  Elkridge  Railw.,  1  Md.  Ch.  107  ;  Martin  ex  parte,  8  Eng.  (Ark.)  198.  In  Blood- 
good  v.  The  Mohawk  &  Hudson  Railw.  Co.,  14  Wend.  51,  it  is  held  that  this  con- 
stitutional requirement  merely  contemplates  a  legal  provision  for  compensation, 
and  not  that  such  property  shall  be  actually  paid  for  before  taken,  s.  c.  reversed, 
18  id.  9 ;  s.  c.  1  Redf.  Am.  Railw.  Cases,  209.  In  Boynton  v.  The  Peterboro' 
and  Shirley  Railw.  Co.,  4  Cush.  467 ;  Shaw,  C.  J.,  says,  "The  right  to  damages 
for  land  taken  for  public  use  accrues  and  takes  effect  at  the  time  of  taking,  though 
it  may  be  ascertained  and  declared  afterwards.  That  time  in  the  case  of  rail- 
roads, prima  facie,  and  in  the  absence  of  other  proof,  is  the  time  of  the  filing  of 

[*281] 


EMINENT  DOMAIN.  PART  III. 

It  was  held  in  one  case,6  where  the  act  of  parliament  gavt 
the  right  to  take  Lands  for  the  purpose  of  building  a  turnpike* 

the  location."  Charlestown  Branch  Railw.  v.  Middlesex,  7  Metcalf,  78;  s.  c.  1 
\m   Rail,  Davidson  v.  Boston  &  Maine  Railw.,  3  Cush.  91. 

In  Massachusetts  the  remedy  is  limited  to  three  years  by  statute,  and  the  time 
from  the  filing  of  the  location.     Charlestown  Branch  Railway  v.  County 

Commissi its  of  Middlesex,  7  Met.  78;  s.  c.  1  Am.  Railw.  C.  383.     So  where 

:i  corporation,  after  locating  a  railway  over  a  wharf  more  than  sixty  feet,  and 
filing  the  location  with  the  county  commissioners,  agreed  with  the  owners  of  the 
wharf  tn  extend  the  road  sixty  feet  on  and  over  the  same  before  a  certain  day, 
and  the  owners,  in  consideration,  agreed  to  demand  no  damages  for  the  exten- 
sion, and  the  road  was  constructed  according  to  the  location  filed  before  the 
agreement  :  Held,  that  this  was  not  an  agreement  not  to  extend  the  road  more 
tli.tn  Bixty  feet,  and  that  the  owners  of  the  wharf  were  not  thereby  entitled  to 
apply,  after  three  years  from  the  filing  of  the  location,  for  an  estimate  of  the 
damages  caused  by  an  extension  of  the  road  more  than  sixty  feet  over  the  wharf. 
lb.  By  the  New  York  statute  of  1851,  railway  companies  have  no  right  to  enter 
opon,  occupy,  or  cross  a  turnpike  or  plank  road  without  consent  of  the  owners, 
except  on  condition  of  first  making  compensation  for  damages  to  such  turnpike 
or  plank-road  company.     Plank  Road  Co.  v.  Buffalo,  &c.  Railw.  Co.,  20  Barb. 

■■■.  ('.  J.,  in  Boston  &  Providence  Railw.  Corporation  v.  Midland  Railw. 
Gray,  31<>,  860,  says:  "The  effect  of  the  location  is  to  bind  the  land 
described  to  that  servitude,  and  to  conclude  the  land-owner  and  all  parties  hav- 
ing derivative  interests  in  it  from  denying  the  title  of  the  company  to  their  ease- 
nniit  in  it.     We  think,  therefore,  that  the  filing  of  the  location  is  the  taking  of 
the  land.     It  is  upon  that  the  owner  is  forthwith  entitled  to  compensation,  it  is 
i  which  gives  the  easement  to  the  corporation  and  the  right  to  have  dam- 
the  owner  of  the  land."     See,  also,  Drake  v.  Hudson  River  Railw.,  7 
I Kirl. .  508,  552. 

In  those  states,  where  the  constitutions  contain  express  provisions  requiring  a 

-  compensation  to  the  right  to  appropriate  the  land,  as  in  Pennsylvania, 

Kentucky,  and  Mississippi,  the  decisions  upon  this  point  would  not 

be  much  guide,  in  regard  to  the  general  rule,  in  the  absence  of  any  express  pro- 

of  the  kind.     But  see  Ilarrisburg  v.  Crangle,  3  Watts  &  Serg.  460. 

And  in  Borne  of  the  states,  even  where  a  concurrent  right  to  compensation, 

with  tlic  appropriation  of  the  land,  is  recognized,  it  seems  to  be  considered  by 

ome  that   i  Btatute,  authorizing  the  appropriation  of  land  for  public  uses,  and 

which  makes  no  provision  for  compensation,  is  not  on  that  account  unconstitu- 

<  (pinion  of  the  Chancellor  in  Rogers  v.  Bradshaw,  20  Johns.  735. 

But  the  prevailing  opinion,  even  in  New  York,  seems  to  be,  that  the  statute 

•  Lister  r>.  Lobley,  7  Ad.  &  Ellis,  L24,  Lord  Denman  says:  "  The  amount  of 

<  ompenaation  cannot  generally  be  ascertained  till  the  work  is  done.     The  effect 

of  the  words  in  question  is  that  they  shall  not  do  it  without  being  liable  to  make 

omp.-nv,;,,.,,."     p  3eemt  ,,,  have  been  supposed  here,  that  if  the  company  did 

not  m  dee  compensation  they  might  be  compelled  to  do  so  by  mandamus. 

[•282] 


§  73.  THE   TIME   COMPENSATION   TO   BE   MADE.  299 

road,  *  making  or  tendering  satisfaction,  that  this  need  not  be 
done  before,  or  at  the  time  of  entering  upon  or  taking  the 
lands. 

6.  But  this  subject  was  largely  discussed,  in  an  early  case  in 
New  York,7  and  finally  determined  by  the  court  of  errors  reversing 

should  provide  some  available  remedy  for  adequate  compensation,  and  that  un- 
less that  is  done,  the  act,  if  not  positively  unconstitutional,  is  so  defective,  that 
no  proceedings  should  be  suffered  under  it,  until  compensation  is  secured,  and 
that  a  court  of  equity  should  interfere.  Gardner  v.  Newburgh,  2  Johns.  Ch. 
162;  Rexford  v.  Knight,  11  N.  Y.  308;  Willyard  v.  Hamilton,  7  Ham.  449; 
Rubottom  v.  McCluer,  4  Blackf.  505;  McCormick  v.  Lafayette,  Smith  (Indi- 
ana), 83;  Mercer  v.  McWilliams,  Wright,  132. 

Some  cases  have  made  a  distinction  (in  regard  to  the  necessity  of  a  previously 
ascertained  compensation  being  made  and  so  situated  as  to  be  capable  of  being 
made  available  to  the  owner  of  land,  concurrently  with  its  appropriation  to  pub- 
lic use)  between  ordinary  cases  and  that  class  of  cases  where  the  property  is 
put  to  the  use  of  the  state  directly,  and  that  in  such  cases  it  is  not  indispensable. 
Young  v.  Harrison,  6  Ga.  130. 

And  the  grant  of  the  right  to  bridge  a  navigable  river,  or  arm  of  the  sea,  or 
to  obstruct  the  flow  and  reflow  of  the  tide  upon  the  flats  of  private  persons 
although  it  may  abridge  their  beneficial  use,  is  not  such  an  invasion  of  private 
property  as  to  entitle  the  party  to  compensation.  It  is  but  the  regulation  of 
public  rights,  and  if  private  persons  thereby  suffer  damage,  it  is  damnum  absque 
injuria.  Davidson  v.  Boston  &  Maine  Railw.,  3  Cush.  91.  See,  also,  upon  the 
subject  generally,  Zimmerman  v.  Union  Canal  Co.,  1  Watts  &  S.  346;  Phila- 
delphia &  Reading  Railw.  v.  Yeiser,  8  Penn.  St.  366;  2  Am.  Railw.  C.  325; 
Commonwealth  v.  Fisher,  1  Penn.  462 ;  ante,  §  63. 

But  it  is  very  generally  held,  that  in  the  absence  of  all  express  provision  by 
statute  in  regard  to  the  time  when  compensation  shall  be  made,  the  party  is  at 
all  events  entitled  to  have  it  ascertained  and  ready  for  his  acceptance,  concur- 
rently with  the  actual  appropriation  of  the  estate  to  public  use,  and  that  he  is  not 
obliged  to  wait  till  the  work  is  completed.  People  v.  Hayden,  6  Hill  (N.  Y.), 
359;  Baker  v.  Johnson,  2  Hill,  342. 

But  no  right  to  compensation  vests  in  the  land-owner  till  the  acceptance  and 
confirmation  of  the  appraisal  by  the  proper  tribunal,  under  any  statutory  pro- 
visions, in  most  of  the  American  states,  and  until  that,  the  company  may  change 
the  location  of  their  road,  and  abandon  proceedings  pending  against  land-owners, 
on  the  first  surveyed  route,  by  paying  costs  already  assessed.  Hudson  River 
Railw.  v.  Outwater,  3  Sandf.  Sup.  Ct.  689. 

And  where  the  statute  of  the  state  provides  that  no  valuation  of  property 
taken  for  railway  and  canal  purposes  need  be  made  before  taking  possession  of 
the  same,  in  those  cases  where  the  property  is  not  obscured,  so  that  its  value 
cannot  be  judged  of,  it  was  held  there  should  be  no  unreasonable  delay  in  having 
the  valuation  made.     Compton  v.  Susquehanna  Railw.,  3  Bland,  Ch.  886. 

7  Bloodgood  v.  M.  &  H.  Railw.  Co.,  14  Wend.  51 ;  s.  c.  18  id.  9,  59 ;  s.  c. 
1  Redf.  Am.  Railw.  Cases,  209.    See,  also,  upon  this  subject,  Fletcher  v.  Auburn 

[*283] 


800  EMINENT   DOMAIN.  PART  III. 

*  the  judgmenl  of  the  court  below,  that  if  provision  was  made  for 
compensation  in  (he  act,  giving  [tower  to  take  the  lands,  it  was  not 

A  Syi  k  use  Etailw.,  25  Wend,  462;  Smith  v.  Helmer,  7  Burl).  416;  Pittsburgh  v. 
-  r.  i  lvim.  St.  :;(>!);  People  v.  Michigan  Southern  Railw.,  3  Gibbs,  496.  In 
tlii>  case  it  is  said  the  party  who  makes  no  application  for  compensation  for  many 
years  should  be  regarded  as  having  waived  all  claim.  Id.  p.  506.  See,  also, 
Smith  v.  .McAdam.  8  Gibbs,  506.  And  where  the  statute  provided  for  depositing 
the  value  of  tlie  land  taken  before  entry  upon  it,  it  was  held  this  was  a  provision 
for  tlie  security  of  the  land-owner,  and  might  be  waived  by  him;  and  if  so,  and 
entry  was  made  by  the  company  without  making  the  deposit,  he  might  recover 
the  assessment  in  an  action  of  debt.  Smart  i).  Railway,  20  N.  H.  233.  But  in 
one  case  it  was  held  indispensable  to  the  validity  of  the  power,  that  the  party, 
wiinsc  land  was  taken  should  have  something  more  than  a  right  of  action  for 
the  value  of  his  land.  Shepardson  v.  M.  &  B.  Railw.,  6  Wisconsin,  605.  See 
Powers  r.  Bears,  12  id.  213;  Ford  v.  Ch.  &  N.  W.  Railw.  Co.,  14  id.  609. 

And  by  the  construction  of  the  statute  of  Maine,  a  railway  corporation,  as  soon 
as  their  track  is  located,  may  take  immediate  possession,  and  the  land-owner, 
failing  to  agree  with  the  company,  as  to  the  amount  of  damages  may  apply  to 
the  courts  to  have  the  same  assessed,  and  thereupon  the  company  are  required 
to  pay  or  give  security  for  the  same,  and  their  right  of  possession  is  suspended 
until  the  requirement  is  complied  with  ;  but  no  action  of  trespass  lies  in  such 
cases.  Davis  v.  Russell,  47  Me.  443.  Where  by  statute  a  bond  is  required  to 
be  filed  by  the  company  to  secure  damages  to  the  land-owner,  upon  failure  of 
the  parties  to  agree  upon  the  amount,  such  bond  extends  to  all  the  lawful  dam- 
age caused  to  the  owner  by  the  construction  of  the  company's  works;  and  the 
fad  of  its  being  approved  and  ordered  to  be  filed  is  presumptive  proof  that  the 
parties  had  failed  to  agree.  Wadhams  v.  Lackawanna  &  Blooms.  Railw.  Co., 
1-  Penn.  St.  303. 

Bui  in  most  of  the  states  the  assessment  of  the  damages  due  to  the  land-owner, 
and  the  payment,  tender,  or  deposit  of  the  same,  is  held  a  condition  precedent 
to  the  right  of  entry  upon  the  land,  and  the  company  entering  before  this  will, 
prima  facie,  be  regarded  as  trespassers.  Memphis  &  Charleston  Railw.  Co.  v. 
tie,  37  .Miss.  700;  Henry  «.' Dubuque  &  Pacific  Railw.,  10  Iowa,  540;  Evans 
v.  Baefner,  29  Mo.  141 ;  Burns  v.  Dodge,  9  Wis.  458. 

In  McAulay  v.  Western  Vermont  Railw.  Co.,  33  Vt.  311;  8.  C.  1  Redf. 
Am.  Etailw.  Cases,  245,  it  was  decided  that  the  payment  of  land  damages  was  a 
condition  precedent  to  the  acquiring  of  title  by  a  railroad  company  of  lands 
taken  for  tlieir  road.  But  that  where  the  land-owner  acquiesces  in  the  occupa- 
tion of  h\<  land  for  the  construction  of  a  railway  without  prepayment  of  land 
damages,  upon  a  contract  or  understanding  for  future  payment  by  the  company, 
and  tlie  road  is  constructed  and  put  in  operation,  he  cannot  afterwards,  on  failure 
to  obtain  payment,  maintain  trespass  or  ejectment  for  the  land.  And  whether, 
under  such  circumstances,  he  would  still  retain  an  equitable  lien  on  the  land, 
•em-  doubtful.  The  mere  prosecution  of  a  controversy  by  the  land-owner  with 
the  company,  before  commissioners  or  on  appeal,  as  to  the  amount  of  the  dam-' 
ich  a  prohibition  of  the  taking  of  the  land  by  the  company  without 
prepayment  of  land  damages  as  is  necessary  to  enable  the  land-owner  to  maintain 


§  73.  THE   TIME   COMPENSATION   TO   BE   MADE.  301 

indispensable  that  the  amount  should  be  actually  ascertained  and 
paid  before  the  appropriation  of  the  property. 

7.  In  Mississippi  it  is  required,  by  the  constitution  of  the  state, 
that  the  compensation  be  paid  before  the  right  to  use  the  land  is 
vested.8  So  also  in  Georgia  the  title  does  not  vest  in  the  company 
until  the  ascertained  compensation  is  paid  or  tendered.9  A  similar 
decision  was  made  by  the  Supreme  Court  of  the  United  States,10 
where  the  charter  of  the  company  provided  that  the  payment,  or 
tender,  of  the  valuation,  should  vest  the  estate  in  the  company,  as 
*  fully  as  if  it  had  been  conveyed.  And  a  similar  decision  was 
also  made  by  the  Supreme  Court  of  Vermont.11 

trespass  or  ejectment  for  the  land  after  the  road  is  put  in  operation.  Nor  will  no- 
tice to  the  laborers  on  the  railway  employed  by  the  contractor  be  considered  as 
sufficient  to  entitle  the  land-owner  to  maintain  trespass  or  ejectment  against  the 
company,  the  company  not  being  affected  by  such  notice.  In  Dayton,  &c.  Railw. 
v.  Lawton,  20  Ohio  (N.  S.),  401,  where  the  defendant  agreed  to  convey  to  the 
plaintiffs  the  right  of  way  through  his  lands  on  payment  of  the  agreed  price,  and 
they  entered  before  payment,  it  was  held  that  the  land-owner  had  a  lien  on  the 
land  for  the  unpaid  purchase-money,  which  could  be  enforced  by  the  sale  of  the 
whole  road.  In  Earl  of  Jersey  v.  B.  F.  Floating  Dock  Co.,  L.  R.  7  Eq.  409,  it 
was  held  that  the  land-owner,  after  the  construction  of  the  works,  could  retain  no 
lien  upon  the  lands  for  payment  of  a  rent-charge.  Wickens,  V.  C,  said  the  en- 
forcement of  such  a  lien  by  entry  upon  the  land  would  be  contrary  to  any  probable 
intention  of  the  parties.  But  in  Bishop  of  Winchester  v.  Mid-Hants  Railw.,  L.  R. 
5  Eq.  17,  the  court  held  that  Avhcre  railway  companies  had  been  allowed  to  build 
their  line  across  lands  by  promising  payment  of  agreed  land  damages  in  six  months 
after  the  completion  of  the  works,  the  vendor's  lien  might  be  enforced  against  the 
companies  by  appointing  a  receiver,  or  in  any  other  proper  manner.  See,  also, 
Munns  v.  Isle  of  Wight  Railw.,  8  id.  653,  where  the  Vice-Chancellor  said  the 
land-owner,  after  having  obtained  a  decree  for  payment  of  land  damages,  had  the 
right  to  say  to  the  company,  "pay  me  the  purchase-money  or  give  me  back  my 
property." 

5  Stewart  v.  Raymond  Railw.  Co.,  7  Smedes  &  M.  568.  See  also  Thomp- 
son v.  Grand  Gulf  Railw.,  3  Howard  (Miss.),  240. 

9  Doe  v.  The  Georgia  Railw.  Banking  Co.,  1  Kelly,  524. 

10  Baltimore  &  Susquehanna  Railw.  Co.  v.  Nesbit,  10  How.  395. 

11  Stacey  v.  Vermont  Central  Railw.  Co.,  27  Vt.  39.  The  opinion  of  Isham, 
J.,  in  this  case,  will  show  the  correlative  rights  of  the  company  and  land-owner, 
and  by  what  act  the  right  of  each  becomes  perfected.  Where  the  statute  requires 
the  company  to  contract  in  writing,  it  is  not  competent  to  show  title  in  any  other 
mode,  unless  by  formal  conveyance.  Harborough  v.  Shardlow,  2  Railw.  C.  253 ; 
7  M.  &  W.  87.  In  Graff  v.  The  City  of  Baltimore,  10  Md.  544,  it  was  held, 
under  a  statute  for  enabling  the  city  to  supply  pure  water,  and  to  take  land  upon 
valuation  by  a  jury,  and  compensation  to  the  owners,  and  that  where  "  such  val- 
uation is  paid,  or  tendered,  to  the  owner  or  owners"  of  the  property,  it  "  shall 

[*285] 


- 


EMINENT  DOMAIN. 


PART  III. 


g,  1,,  one  case  in  North  Carolina,12  it  was  held  that  compensa- 
tion Deed  not  be  made  prior  to  appropriating  land  for  public  use. 
The  constitution  of  the  state  is  said  to  contain  no  prohibition 
Rgainsl  taking  private  property  for  public  use,  without  compensa- 
tion. Ami  the  same  is 'true  of  the  constitution  of  South  Carolina. 
And  tin' latter  state  held  1:J  that  private  property  might  be  taken 
withoul  compensation.  But  this  decision  is  certainly  at  variance 
with  the  generally  received  notions  upon  that  subject,  since  the 
period  of  the  Roman  Empire. 


♦SECTION    XII. 


Appraisal  includes   Consequential  Damages. 


1.  Consequential  damage  barred. 

2.  Such  as  damage,  by  blasting  rock. 

...   I.   I      I   'here  other  land  is  used  unneces- 
sarily. 

loss  by  fires,  obstruction  of  access,  and 
cutting  off  springs,  is  barred. 

•'■    /   s»  by  flowing  land  not  barred. 


6.  Damages,  from  not  building  upon  the  plan 

contemplated,  are  barred. 

7.  Special  statutory  remedies  reach  such  dam- 

ages. 

8.  Exposure  of  land  to  fires. 

9.  No  action  lies  for  damage  sustained  by  the 

use  of  a  railway. 


§  74.  1.  It  is  requisite  that  the  tribunal  appraising  land  darn- 
for  lands  condemned  for  railways,  should  take  into  considera- 
tion all  such  incidental  loss,  inconvenience,  and  damage,  as  may 
reasonably  be  expected  to  result  from  the  construction  and  use 

entitle  the  city  to  the  use,  estate,  and  interest  in  the  same,  thus  valued,  as  fully 
ib  it  it  had  been  conveyed  by  the  owners;  "  that  the  city  is  not  bound  by  the 
mere  inquisition  and  judgment  thereon,  but  could  rightfully  abandon  the  loca- 
tion;  and  that  payment,  or  tender,  under  the  statute,  was  indispensable  to  the 
of  the  title,  lint  it  was  held,  that  the  city  may  be  made  liable,  in  another 
form  of  proceeding,  to  the  land-owner,  for  any  loss  or  damage  he  may  have  sus- 
tained,  by  reason  of  the  conduct  of  the  municipal  authority  in  the  premises. 

u  It.  &  <..  Railw.  Co.  v.  Davis,  2  Dev.  &  Bat.  451.     But  in  New  Jersey  it 
WU  held  that  the  supervisors,  in  laying  out  roads,  are  bound  to  award  damages 
to  land-owners,  with  their  return,  or  the  whole  proceeding  is  illegal  and  void. 
1    irretson,  3  Zab.  388. 

I  >awson,  :;  Hill  (S.  C),  100.     In  this  case  Mr.  Justice  Richardson 

m  the  decision  of  the  court,  and  it  is  generally  allowed  that  his  opinion 

contains  the  better  law.     His  argument,  in  the  language  of  the  author  of  the 

Commentaries,  vol.  2,  ubi  supra,  "was  very  elaborate   and   powerful."     See 

rille  Railw.  Co.  v.  Chappell,  1  Rice,  383;  Lindsays.  The  Commissioners, 

2  Bay, 

[•286] 


§  74.  APPRAISAL   INCLUDES   CONSEQUENTIAL   DAMAGES.  303 

of  the  road,  in  a  legal  and  proper  manner.  And  as  all  tribu- 
nals, having  jurisdiction  of  any  particular  subject-matter,  are 
presumed  to  take  into  consideration  all  the  elements  legally  con- 
stituting their  judgments,  such  incidental  loss  and  damage  will  be 
barred,  by  the  appraisal,  whether  in  fact  included  in  the  estimate 
or  not. 

2.  Hence  damage  done  by  the  contractors  to  the  remaining 
land,  by  blasting  rocks,  in  the  course  of  construction,  has  been 
held  to  be  barred,  as  included  in  the  estimated  compensation  for 
the  land  taken.1 

1  Dodge  v.  The  County  Commissioners,  3  Met.  380;  s.  c.  1  Redf.  Am. 
Railw.  Cases,  279 ;  Sabin  v.  Vermont  Central  Railw.,  25  Vt.  363;  s.  c.  1  Redf. 
Am.  Railw.  Cases,  282 ;  Dearborn  v.  Boston,  Concord,  &  Montreal  Railw.,  4 
Foster,  179,  187;  Whitehouse  v.  Androscoggin  Railw.,  52  Me.  208.  But  in 
Hay  v.  Cohoes  Company,  2  Comst.  159,  the  defendants,  a  corporation,  dug  a 
canal  upon  their  own  land,  for  the  purposes  authorized  by  their  own  charter.  In 
so  doing,  it  was  necessary  to  blast  rocks,  and  the  fragments  were  thrown  against 
and  injured  the  plaintiff's  dwelling,  upon  land  adjoining,  and  it  was  held  the 
defendants  were  liable  to  a  special  action  for  the  injury,  although  no  negligence 
or  want  of  skill  was  alleged  or  proved ;  and  in  Tremain  v.  Cohoes  Company,  2 
Comst.  163,  a  precisely  similar  action,  it  was  held  that  evidence  to  show  the 
work  done  in  the  most  careful  manner  was  inadmissible,  there  being  no  claim  for 
exemplary  damages. 

But  there  is  probably  an  essential  difference  between  the  case  of  a  railway  in 
the  construction  of  which  blasting  rocks  is  almost  indispensable,  and  that  of  a  man- 
ufacturing company,  or  other  proprietor,  who  may  find  it  convenient  to  blast  rocks 
upon  his  premises,  to  increase  their  utility  or  beauty.  But  for  doing  what  the  act 
does  not  authorize,  or  doing  what  it  does  authorize,  improperly,  a  railway  com- 
pany is  liable  to  an  action.  Turner  v.  Sheffield  &  R.  Railw.,  10  M.  &  W.  425. 
In  Carman  v.  Steubenville  &  Ind.  Railw.,  4  Ohio  (N.  S.),  399,  it  seems  to  be 
taken  for  granted,  that  throwing  fragments  of  rock,  by  blasting,  upon  the  land  of 
adjoining  proprietors,  is  an  actionable  injury,  and  as  in  this  case  it  was  done  by 
the  contractor  in  the  performance  of  his  contract,  in  the  manner  stipulated,  the 
company  were  held  liable. 

The-  result  of  the  cases  would  seem  to  be,  that  where  the  damage  done,  by 
blasting  rocks,  or  in  any  similar  mode,  in  the  course  of  the  construction  of  a 
railway,  is  done  to  land,  a  portion  of  which  is  taken  by  the  company  under  com- 
pulsory powers,  this  damage  will  not  lay  the  foundation  of  an  action,  in  any  form, 
as  it  should  be  taken  into  account  in  estimating  the  compensation  to  the  land- 
owner for  the  portion  of  land  taken.  Brown  v.  Brov.,  Warren,  &  Bristol  Railw., 
5  Gray,  35.  And  if  not  included  in  the  appraisal,  it  is  nevertheless  barred.  Dodge 
v.  County  Commissioners,  supra. 

But  if  the  damage  is  done  to  land,  no  part  of  which  is  taken,  and  where  no 
land  of  the  same  owner  is  taken,  it  may  be  recovered,  under  the  statute,  if  pro- 
vision is  made  for  giving  compensation  for  consequential  damage,  or  where  lands 

[*286] 


EMINENT   DOMAIN.  PART  III. 

Bui  it  was  held  (hat  this  did  not  preclude  the  land-owner 
from  recovering  damages  for  using  land  adjoining  the  land  taken 
or  a  cart-way,  where  six  rods  were  allowed  to  be  taken  by  the 
company  throughout  the  line  of  the  road,  which  would  give  ample 
space  for  cart-ways  upon  the  land  taken.2  But  it  was  held,  in 
another  case,  that  the  company  were  not  liable  for  entering  upon 
the  adjoining  lands,  and  occupying  the  same  with  temporary  dwell- 

are  "  injuriously  affected."  But  if  the  statute  contain  no  such  provision,  the 
only  remedy  will  be  by  a  general  action.  And  in  this  view  many  of  the  cases 
i  above  seem  to  assume,  that  blasting  rocks,  by  an  ordinary  proprietor  of 
land  is  a  nuisance  to  adjoining  proprietors  if  so  conducted  as  to  do  them  serious 
damage.  And  this  is  the  ground  upon  which  the  case  of  Carman  v.  Steubenville 
&  Ind  Railw.  i^  decided,  without  much  examination  of  this  point,  indeed,  and  by 
a  divided  court.  But  if  a  railway  is  not  liable  for  necessary  consequential  dain- 
.  inless  the  statute  gives  a  remedy  (post,  §  75),  it  may  perhaps  be  questioned 
how  far  ;i  recovery  could  be  maintained,  in  a  general  action  for  damage  done 
by  blasting  rocks,  as  that  is  confessedly  within  the  range  of  their  powers.  See 
opinion  ol  Shaw,  C.  J.,  in  Dodge  v.  County  Commissioners,  3  Met.  380:  "An 
authority  to  construct  any  public  work  carries  with  it  an  authority  to  use  the 
appropriate  means.  An  authority  to  make  a  railway  is  an  authority  to  reduce 
the  line  ol  the  road  to  a  level,  and  for  that  purpose  to  make  cuts,  as  well  through 
ledges  of  rock  as  through  banks  of  earth.  In  a  remote  and  detached  place,  where 
due  precaution  can  be  taken  to  prevent  danger  to  persons,  blasting  by  gunpow- 
der is  ;t  reasonable  and  appropriate  mode  of  executing  such  a  work;  and,  if  due 
precautions  are  taken  to  prevent  unnecessary  damage,  is  a  justifiable  mode.  It 
follows  that  the  necessary  damage  occasioned  thereby  to  a  dwelling-house  or 
other  building,  which  cannot  be  removed  out  of  the  way  of  such  danger,  is  one 
of  the  natural  and  unavoidable  consequences  of  executing  the  work,  and  within 
the  provisions  of  the  statute. 

"  ' (|  course,  this  reasoning  will  not  apply  to  damages  occasioned  by  care- 

i  negligence  in  executing  such  a  work.  Such  careless  or  negligent  act 
would  be  a  tort,  for  which  an  action  at  law  would  lie  against  him  who  commits, 
or  hun  who  commands  it.  But  where  all  due  precautions  are  taken,  and  damage 
i-  still  necessarily  done  to  fixed  property,  it  is  alike  within  the  letter  and  the 
equity  ol  the  statute,  and  the  county  commissioners  have  authority  to  assess  the 
damages.  This  court  are  therefore  of  opinion,  that  an  alternative  writ  of  manda- 
ie  awarded  to  the  county  commissioners,  to  assess  the  petitioners1  damages, 
or  return  their  r<  asons  lor  not  doing  so."  See  also  Pottstown  Gas  Co..  v.  Mur- 
phy. :;:>  Penn.  St.  257  :  Whitehouse  v.  Androscoggin  Railw.,  52  Me.  208.     In  the 

••   it  was   held   that   the  damage  resulting  to   the  land-owner,  for  not 

removing  the  Btone  thrown  upon  land  adjoining  that  taken,  could  not  be  taken 

Jount  in  estimating  damages,  since  it  was  presumable  the  company  would 

'•'"  in  proper  time,  according  to  their  duty;  and,  if  they  did  not,  the 
remedy  would  he  by  Hpecial  action. 

•  •  Vermont  <  lentral  Railw.,  25  Vt.  363  ;  s.  c.  1  Redf.  Am.  Railw.  Cases, 
2S2:   E    '  '-  'V-  X.  A.  Railw.,  59  Me.  520. 

[*287,  288] 


§  74.  APPRAISAL   INCLUDES   CONSEQUENTIAL   DAMAGES.  305 

ings,  stables,  and  blacksmith  shops,  provided  no  more  was  taken 
than  was  necessary  for  that  purpose.3 

4.  So  it  is  settled  that  the  appraisal  of  land  damages  is  a  bar  to 
claims  for  injuries  by  fire,  from  the  engines  obstructing  access  to 
buildings,  exposing  persons  or  cattle  to  injury,  and  many  such 
risks.4  And  it  will  make  no  difference,  that  the  damages  were  not 
known  to  the  appraisers,  or  capable  of  anticipation  at  the  time  of 
assessing  land  damages  ;5  as  where  a  spring  of  water  is  cut  off  by 
an  excavation  for  the  bed  of  a  railway  fifteen  feet  below  the  sur- 
face, from  which  the  plaintiff's  buildings  had  been  supplied  with 
water. 

*5.  But  it  was  held,  that  where,  in  the  construction  of  a  canal, 
with  waste  weirs,  erected  by  direction,  and  under  the  inspection 
of  the  commissioners  appointed  to  designate  the  route  of  the 
canal,  with  all  the  works  connected  therewith,  and  to  appraise 
damages,  the  waste  water,  after  flowing  over  the  land  of  adjoining 
proprietors,  flowed  upon  the  land  of  the  plaintiff,  and  thereby 
greatly    injured   it,   that    he    was    entitled    to    recover    damages.6 

3  Lauderbrun  v.  Duffy,  2  Penn.  St.  398.  But  it  seems  questionable  whether 
this  case  can  be  maintained  as  a  general  rule.  But  if  a  party  is  entitled  to  com- 
pensation for  injuries  of  this  kind,  as  where  his  lands  adjoining  a  railway,  and 
no  part  of  which  is  taken,  are  injuriously  affected,  as  by  blasting  rocks,  his 
only  remedy  is  under  the  statute.  Dodge  v.  County  Commissioners,  3  Met. 
380. 

4  Phila.  &  Reading  Railw.  v.  Yeiser,  8  Penn.  St.  366;  s.  c.  2  Am.  Railw.  C. 
325;  Aldrich  v.  Cheshire  Railw.,  1  Foster,  359;  s.  c.  1  Am.  Railw.  C.  206; 
Mason  v.  Kennebec  &  Port.  Railw.,  31  Maine,  215.  See  also  Furniss  v.  Hudson 
River  Railw.,  5  Sandf.  551  ;  Huyett  v.  Phil.  &  Read.  Railw.,  23  Penn.  St.  373 ; 
ante,  §§71,  72.  See  also  Lafayette  Plank-Road  Co.  v.  New  Albany,  &c.  Railw. 
Co.,  13  Ind.  90.  The  land-owners  can  claim  no  additional  damages  because  the 
company  move  their  track  in  the  street  nearer  to  their  land  than  it  was  at  first 
laid.     Snyder  v.  Penn.  Railw.,  55  Penn.  St.  340. 

3  Aldrich  v.  Cheshire  Railw.,  supra.  But  see  Lawrence  v.  Great  Northern 
Railw.,  16  Q.  B.  643;  s.  c.  4  Eng.  L.  &  Eq.  265.  So,  also,  where  the  com- 
pany's works  cut  off  a  spring  of  water  below  high-water  mark,  on  a  navigable 
river,  it  was  held  the  riparian  owner  was  entitled  to  claim  damages  of  them  on 
that  account,  in  a  proceeding  under  the  statute.  Lehigh  Valley  Railw.  v.  Trone, 
28  Penn.  St.  206. 

6  Hooker  v.  New  Haven  &  Northampton  Co.,  14  Conn.  146 ;  s.  c.  15  Conn. 
312.  But  in  such  case,  the  owner  of  property  overflowed  by  water,  through  the 
defective  construction  of  a  railway,  is  bound  to  use  reasonable  care,  skill,  and 
diligence,  adapted  to  the  occasion,  to  arrest  the  injury  ;  and  if  he  do  not,  not- 
withstanding the  first  fault  was  on  the  part  of  the  company,  he  must  be  regarded 
as  himself  the  cause  of  all  damage,  which  he  might  have  prevented  by  the  use 
vol.  i.  20  [*289J 


EMINENT    DOMAIN.  PART  III. 

Bui  the  occasional  How  of  land  by  water,  caused  by  public  works, 
is  to  be   estimated   as   part  of  the  damages   under   the    English 

Btatute.7 

\ ml  where  the  appraisal  of  land  damages  is  reduced  below 
what  it  otherwise  would  have  been,  by  the  representations  of  the 
■  its  of  the  company  that  the  road  would  be  constructed  in  a 
particular  manner,  made  at  the  time  of  the  appraisal  to  the  com- 
mission.-rs.  "  and  which  representations  are  not  fulfilled  in  the 
actual  construction  of  the  road,  whereby  the  plaintiff  sustained 
serious  loss  and  injury,  it  was  held,  that  the  adjudication  of  the 
commissioners  was  a  merger  of  all  previous  negotiations  upon  the 
Bubject,  and  that  no  action  could  be  maintained  for  constructing 
the  railway  contrary  to  such  representations,  provided  it  was  done 
in  a  prudent  and  proper  manner.8 

of  such  care,  diligence,  and  skill.     Chase  v.  The  N.  Y.  Central  Railw.,  24  Barb. 

The  Bame  rule  was  adopted  by  a  special  referee,  in  Lemmex  v.  Vermont  Cen- 
tral Railw.,  iu  regard  to  damage  to  wool,  by  being  exposed  to  rain  at  one  of  the 
company's  stations,  through  the  fault  of  the  agents  of  the  company,  where  the 
owner  did  tint  remove  it,  as  soon  after  he  obtained  knowledge  of  its  condition, 
or  take  as  effective  measures  to  arrest  the  injury,  as  he  reasonably  should  have 
done.  It  was  held  the  company  were  only  liable  for  such  damage  as  necessarily 
resulted  from  their  own  fault,  and  beyond  that  the  plaintiff  must  be  regarded  as 
the  cause  of  his  own  1-  ss.     See  also  post,  §  191. 

The  asst  ssment  of  compensation  for  land  taken  for  a  railway  covers  all  dam- 

s,  whether  foreseen  or  not,  and  whether  actually  estimated  or  not,  which 
result  from  the  proper  construction  of  the  road.  But  the  company  are  liable  to 
an  action  lor  damages  resulting  to  anyone  from  the  defective  construction  of 
their  road.  In  the  present  case  the  plaintiff's  meadows  were  injured,  in  conse- 
quence of  the  insufficient  culverts  in  the  defendant's  road,  there  being  no  imped- 
iment to  the  construction  of  proper  ones.  Suitable  bridges  and  culverts  to 
convey  the  water  across  the  railway,  at  or  near  the  places  where  it  naturally 
flows,  arc  necessary  to  the  proper  construction  of  the  road,  except  where  they 
cannot  be  made,  or  where  the  expense  of  making  them  is  greatly  disproportion- 
ate to  the  interests  to  be  preserved  by  them.  Johnson  v.  At.  &  St.  Law  Railw., 
II.  669. 

•   Ware  • .  Regent's  'anal  Co.,  3  De  G.  &  J.  212. 
Butman       Vt.  C.  Railw.  Co.,  27  Vt.  500.    See  also  Railw.  Co.  v.  Washing- 
ton. 1  Rob.  67;   B.  &   S.  Railroad  Co.  v.  Compton,  2  Gill,  20,  28,  ante,  §  71; 
Kyle   r.  Auburn  &   Koch.  Railw.,  2  Barb.  Ch.  489.     But  see  Wheeler  v.  Roch. 

5y,   Railw.,    12   Barb.   227,  where  it  is  held  that  a  railway  company  will  be 

ned  from   building  a  road-crossing  at  a  different  place  from  that  named  at 

the  time  damages  were  assessed.    But  it  has  been  held,  that  it  was  competent  for 

the  company  to  show,  by  experts,  the  necessity  of  putting  a  culvert  through  an 


§  74.  APPRAISAL   INCLUDES   CONSEQUENTIAL   DAMAGES.  307 

7.  But  where  no  part  of  the  plaintiff's  land  is  taken,  and  the 
statute  gives  all  parties  suffering  damage  by  the  construction  of 
railways  the  right  to  recover,  as  in  England  and  some  of  the 
American  states,  and  the  water  is  drawn  off  from  plaintiff's  well 
upon  lands  adjoining  the  railway,  he  may  recover.9  So,  too,  may 
the  proprietor  of  a  mill-pond  recover  damages,  sustained  by  the 
construction  of  a  railway  across  the  same,  although  the  dam 
was  authorized  by  the  legislature,  upon  a  navigable  river  ;  and 
in  constructing  it,  the  conditions  of  the  act  were  not  complied 
with.10 

8.  But  it  has  been  held  that  the  appraisers  are  not  to  estimate 
increased  damages  to  a  land-owner  in  consequence  of  the  ex- 
posure of  the  remaining  land  to  fires  by  the  company's  engines.11 

embankment,  at  a  particular  point,  in  order  to  preserve  the  work,  as  an  answer 
to  a  claim  for  damages  on  account  of  the  prospective  obstruction  of  the  water, 
and  setting  it  back  upon  the  land  at  that  point,  by  the  embankment.  But  it 
should  be  shown  that  such  culvert  is  absolutely  indispensable,  before  any  deduc- 
tion can  be  made  on  that  account,  unless  the  company  are  in  some  legal  way 
bound  to  make  it.  The  company  are  not  estopped  from  proving  this  necessity 
because  the  plat  of  the  location  of  the  road  does  not  indicate  a  culvert  at  that 
point.     Nason  v.  Woonsocket  Union  Railw.,  4  Rhode  Island,  377  ;  post,  §  93. 

9  Parker  v.  Boston  &  Maine  Railw.,  3  Cush.  107. 

10  White  v.  South  Shore  Railw.,  6  Cush.  412. 

11  Sunbury  &  Erie  Railw.  v.  Hummel,  27  Penn.  St.  99,  Lewis,  C.  J.,  and 
Black,  J.,  dissenting.  The  general  current  of  authority  seems  to  us  with  the 
minority  of  the  court.  And  in  Lehigh  Valley  Railw.  v.  Lazarus,  28  Penn.  St. 
203,  the  case  of  Yeizer,  8  Penn.  St.  366,  ante,  n.  4,  is  regarded,  by  the  reporter 
of  that  state,  as  overruled.  It  has  been  held  that  the  appraisers  of  lands  taken 
for  railways  are  to  consider,  in  estimating  the  damage  done  to  the  owner,  the 
depreciation  in  value  to  his  estate  caused  by  the  proximity  of  the  railway,  so  far 
as  it  is  brought  about  solely  by  reason  of  taking  the  land.  Walker  v.  Old  C.  & 
N.  Railw.,  103  Mass.  10.  And  the  turning  of  surface  water  by  reason  of  a  rail- 
way embankment  is  also  to  be  considered  in  estimating  the  damages  to  the  owner 
of  the  estate.  lb.  See  also  Presbrey  v.  Old  C.  &  N.  Railw.,  id.  1.  But  in  an 
action  of  trespass  against  a  railway  company  for  constructing  their  road  through 
plaintiff's  land,  and  thereby  preventing  his  cattle  thriving,  this  latter  injury  is 
not  so  remote  a  consequence  of  the  act  charged  that  it  may  not  be  made  a 
ground  of  claiming  damage,  when  specially  alleged  in  the  declaration.  Bal- 
timore &  Ohio  R.  v.  Thomson,  10  Md.  76.  If  we  understand  the  ground 
assumed  by  the  court  in  Pennsylvania,  at  the  present  time,  it  is,  that  an 
injury  to  buildings,  standing  near  the  line  of  a  railway,  by  fire  from  the  com- 
panies' engines,  when  properly  constructed  and  prudently  managed,  is  too 
remote  and  uncertain  to  form  an  element  in  estimating  damages  to  the  land- 
owner,  either  when  part   of  the   land   is   taken,   or  the   statute   provides   for 

[*290] 


308  EMINENT    DOMAIN.  PART  III. 

'  Nor  caD  any  common-law  action  be  sustained  for  such  damage 
unless  where  actual  loss  intervenes  through  the  negligence  of  the 
company. 

damages  to  all  persons  "injuriously  affected"  by  the  company's  works.  We  are 
entirely  conscious  of  the  embarrassment  attending  all  attempts  to  define  the 
olaas  of  injuries,  which  do,  or  which  do  not,  come  within  the  rule  of  legal  conse- 
tial  injuries,  by  the  construction  or  operation  of  railways.  But  it  seems 
important  to  distinguish  between  a  railway,  as  one  of  the  legitimate  uses  to  which 
the  proprietor  of  land  might  pu  it,  for  the  purpose  of  private  transportation, 
and  upon  which  he  might  no  doubt  use  locomotive  steam-engines,  and  the  use  of 
such  engines  upon  a  pu  lie  railway. 

In  the  former  case  the  land-owner  would  not  be  liable  to  an  adjoining  pro- 
prietor  exo  pt  for  want  of  care,  skill,  or  prudence  in  the  construction  or  use  of 
his  engines.  The  same  would  probably  be  tme  of  a  public  company,  if  the 
legislature  did  not  subject  them  to  any  consequential  damage  resulting  from 
the  nature  of  their  business.  But  where  they  are,  as  in  England,  and  many  of 
the  American  states,  made  liable,  either  as  part  of  the  price  of  land  taken,  or  as 
a  distinct  ground  of  claim,  to  all  consequential  damage  caused  to  the  land-owner, 
both  by  the  construction  and  operation  of  their  road,  or  either  of  them,  in  a 
prudent  and  proper  manner,  it  seems  difficult  to  escape  the  conclusion,  that  the 
exposure  of  property  along  the  line  of  a  railway  to  loss  by  fires  communicated 
by  the  company's  engines,  is  one  of  the  most  direct  sources  of  consequential 
injurv  which  can  be  imagined.  It  is  more  direct  and  substantial  than  that  from 
noise,  dirt,  dust,  smoke,  and  vibration  of  the  soil,  all  which,  under  circumstances, 
have  been  held  proper  elements  of  damage  to  be  considered.  Perhaps  none  of 
them  are  absolutely  grounds  of  giving  damage  in  all  cases.  That  depends  very 
much  upon  the.  nearness  of  the  track  to  the  land.  And  other  circumstances 
may  perhaps  deserve  consideration,  in  many  cases.  But  where  the  track  passes 
directly  through  lands,  near  where  buildings  are  already  erected,  it  is  difficult 
to  conjecture  upon  what  ground  it  could  be  claimed,  that  the  increased  exposure 
to  fire  was  not  a  serious  detriment  to  the  owner.  It  is  certain  it  must  very  seri- 
ously enhance  the  rate  of  insurance,  and  proportionally  diminish  the  value  of  the 
nut.  and  of  the  buildings. 

A-  v. as  -■tnl  by  Shaw,  C.  J.,  Proprietors  of  Locks  and  Canals  v.  Nashua  & 
Lowell  Eailw.,   10  Cush.  385,  it  is  incumbent   upon   one  who    claims   damage 
on  this  ground,  to  show  that  the  company's  track   ran   so   near   his   buildings 
.use  imminent  and  appreciable  danger  by  fire."     When  it  is  undertaken 
to  be  decided,  as  a  question  of  law,  that  in  no  case  is  danger  from  fire,  by  the 
prop.-r  use  of  the  company's  engines,  to  be  considered  in  estimating  land  dam- 
it  is  certainly  contrary  to  the  general  course  of  decisions  upon  the  subject, 
ii  not  to  the  very  principle  upon  which  such  companies  have  been  subjected  to 
u  they  cause  to  land-owners,  beyond  what  accrues  from  the  ordi- 
nary use   of  lands  for  building  and   agricultural  purposes.     These  decisions  in 
1        ,  \  Ivania  are  still  maintained  there,  and  the  rule  has  been  applied  to  the  case 
of  buildings  where  the  owner  is  compelled  to  pay  a  higher  rate  of  insurance  in 
ioi.m  quence  of  the  proximity  of  the  railway.    Patten  v.  Northern  Central  llailw., 
38  Penn.  St.  426.     It  is  here  maintained  that  any  claim  for  damages  in  conse- 
[*291] 


75. 


ACTION   FOR   CONSEQUENTIAL    DAMAGES. 


309 


*  9.  In  an  English  case  12  it  was  held,  after  extended  argument 
and  careful  consideration,  that  the  owner  of  a  house  situated 
close  to  a  railway,  and  which  suffers  depreciation  in  value  from 
vibration  and  smoke,  not  caused  by  any  negligent  use  of  the 
railway,  but  being  the  inevitable  result  of  the  ordinary  use,  has 
no  right  to  compensation  under  the  English  statute,  or  by  dis- 
tinct action  at  law.  The  case  is  put  upon  the  ground  that  the 
legislature  having  legalized  the  use  of  locomotive  steam-engines 
by  railway  companies,  adjoining  proprietors  must  submit  to  the 
inevitable  consequences  of  a  lawful  business,  however  inconvenient 
it  may  become ;  and  can  sustain  no  action  for  damages  any  more 
than  for  the  exercise  of  any  other  legal  business  which  might 
depreciate  the  value  of  property  in  the  neighborhood.  The  English 
statutes  are  construed  to  give  compensation  only  for  injuries  sus- 
tained by  the  construction  and  not  by  the  use  of  a  railway. 


*SECTION    XIII. 


Action  for  Consequential  Damages. 


1.  Statute  remedy  for  lands  "  injuriously  af- 

fected." 

2.  Without  statute  not  liable  to  action. 

3.  Are  liable  for  negligence  in  construction,  or 

use. 

4.  Statute  remedy  exclusive. 


5.  Minerals  reserved. 

6.  Damages  for  taking  land  of  railway  for 

highway. 

7.  Compensation  for  minerals,  when  recover- 

able. 


§  75.  1.  The  liability  of  railways  for  consequential  damage  to 
the  adjoining  land-owners  must  depend   upon  the  provisions   in 

quence  of  the  mere  intrusion  of  noise  and  bustle  upon  one's  seclusion  is  essen- 
tially anti-social,  and  at  war  with  the  fundamental  laws  of  society,  which  we 
should  hot  be  inclined  to  question.  And  as  to  all  mere  conjectural  or  contingent 
advantages  and  disadvantages,  it  may  well  be  said  they  are  too  remote  to  form 
an  element  in  estimating  land  damages.  Searle  v.  Lackawanna  Railw.,  33  Penn. 
St.  57.  But  we  cannot  admit  that  either  of  these  rules  has  any  just  application 
to  exposure  to  fire  from  the  company's  engines,  where  the  danger  is  certain  and 
inevitable.     Post,  §  82. 

12  Brand  v.  Hammersmith  &  City  Railw.  Co.,  Law  Rep.  2  Q.  B.  223  ;  12  Jur. 
(N.  S.)  336 ;  s.  c.  affirmed  in  House  of  Lords  by  a  majority  of  the  law  lords, 
Lord  Cairns  and  a  majority  of  the  judges  dissenting,  18  W.  R.  12 ;  4  L.  R. 
H.  L.  171.  See  also  Lafayette  Plank-Road  Co.  v.  New  Albany  Railw.  Co.,  13 
Ind.  90. 

[*292,  293] 


310  EMINENT   DOMAIN.  PART  III. 

their  obarters,  and  the  general  laws  of  the  state.  In  England 
railway  companies  are,  by  express  statute,1  made  liable  to  the 
owners  of  all  hinds  ''injuriously  affected"  by  their  railways. 
And  under  this  statute  it  has  been  determined,  that  if  the  company 
do  any  act,  which  would  be  an  actionable  injury,  without  the  pro- 
tection  of  the  special  act  of  the  legislature,  they  are  liable  under 
the  Btatute.2  So  that,  there,  any  act  of  a  railway  company  amount- 
ing to  a  nuisance  in  a  private  person,  and  causing  special  damage 
to  any  particular  land-owner,  is  good  ground  of  claiming  damages 
under  this  section  of  the  statute.3 

■2.  But  in  the  absence  af  all  statutory  provision  upon  the  subject, 
railways  are  not  liable  for  necessary  consequential  damages  to 
land-owners,  no  portion  of  whose  land  is  taken,  where  they  con- 
struct and  operate  their  roads  in  a  skilful  and  prudent  manner.4 

1  8  and  9  Vict.  c.  8,  §  68. 

*  Glover  v.  The  North  Staffordshire  Railw.  Co.,  16  Q.  B.  912 ;  s.  c.  5  Eng. 
L.  &  Eq.  335 ;  post,  §  82. 

3  Hatch  v.  Vt.  Central  Railw.  Co.,  25  Vt.  49;  s.  c.  1  Redf.  Am.  Railw. 
Cases,  285 ;  see  §  82,  post. 

*  Monongahela  Nav.  Co.  v.  Coons,  6  Watts  &  S.  101 ;  Radcliff  v.  The  Mayor 
of  Brooklyn,  4  Comstock,  195;  Phil.  &  Trenton  Railw.  Co.,  6  Wharton,  25; 
Seneca  Road  Co.  v.  Aub.-&  Roch.  Railw.  Co.,  5  Hill  (N.  Y.),  170;  Hatch  v. 
Vt.  Central  Railw.,  25  Vt.  49;  Richardson  v.  Vt.  Central  Railw.  Co.,  25  Vt. 
465;  Arnold  v.  Hudson  River  Railw.,  49  Barb.  108;  Cleveland  &  Pittsburgh  v. 
Speer,  56  Penn.  St.  325.  And  even  such  acts  of  a  railway  company  as  might 
have  been  taken  into  account  in  estimating  land  damages,  will  afford  no  ground 
of  action  against  the  company.     P.  F.,  &c.  Railw.  v.  Gilleland,  id.  445. 

There  are  many  other  cases  confirming  the  same  general  view  stated  in  the 
text.  Henry  v.  Pittsburgh  &  Alleghany  Bridge  Co.,  8  Watts  &  Serg.  85;  Can- 
andaigua  &  Niagara  Railw.  v.  Payne,  16  Barb.  273,  where  it  is  held,  that  injury 
to  a  mill  upon  another  lot  of  the  same  land-owner,  in  consequence  of  the  con- 
struction and  operation  of  the  railway,  is  a  matter  with  which  the  commissioners 
have  nothing  to  do  in  estimating  damages  for  land.  So  in  Troy  &  Boston  Railw. 
v.  Northern  Turnpike,  16  Barb.  100,  it  was  held  that  the  consideration  that  the 
business  of  a  turnpike,  which  claimed  damage,  would  be  diminished  by  the  con- 
Btrnction  of  the  railway  along  the  same  line  of  travel,  should  be  disregarded  in 
estimating  damage  to  such  turnpike.  "Every  public  improvement,"  say  the 
court,  "  must  affect  some  property  favorably,  and  some  unfavorably,  from  the 
necessity  of  the  case.  When  this  effect  is  merely  consequential  the  injury  is 
il'imnuja  absque  injuria.  Though  their  property  has  undoubtedly  depreciated 
by  the  <,,n>truction  of  the  railway,  yet  the  turnpike  company  enjoy  all  the  rights 
and  privileges  secured  to  them  by  their  charter,  and  no  vested  rights  have  been 
violated." 

Nor  is  one  entitled  to  damage,  in  consequence  of  a  highway  being  laid  upon 

[*293] 


§  75.  ACTION    FOR   CONSEQUENTIAL    DAMAGES.  311 

*3.  But  if  the  railways  are  guilty  of  imprudence,  or  want  of 
skill,  either  in  the  construction  or  use  of  their  road,  they  are  liable 
*  to  any  one  suffering  special  damage  thereby,5  as  in   needlessly 

his  line,  thus  compelling  him  to  maintain  the  whole  fence.  Kennett's  Petition, 
4  Foster,  139.  In  Albany  Northern  Railw.  v.  Lansing,  16  Barb.  G8,  it  is  said, 
"  The  commissioners,  in  estimating  the  damages,  should  not  allow  consequential 
and  prospective  damages." 

In  Plant  v.  Long  Island  Railw.,  10  Barb.  26,  it  is  held  not  to  be  an  illegal  use 
of  a  street  to  allow  a  railway  track  to  be  laid  upon  it,  and  that  the  temporary 
inconvenience  to  which  the  adjoining  proprietors  are  subject  while  the  work  of 
excavation  and  tunnelling  is  going  on  is  damnum  absque  injuria.  So  also  in  re- 
gard to  the  grade  of  a  street  having  been  altered,  by  a  railway,  by  consent  of  the 
common  council  of  the  city  of  Albany,  who  by  statute  were  required  to  assess 
damages  to  any  freeholder  injured  thereby,  and  who  had  done  so  in  this  case,  it 
was  held  that  no  action  could  be  maintained  against  the  railway.  Chapman  v. 
Albany  &  Sch.  Railw.,  10  Barb.  360;  Adams  v.  Saratoga  &  Wash.  Railw.,  11 
Barb.  414. 

And  in  a  case  in  Kentucky,  Wolfe  v.  Covington  &  Lexington  Railw.,  15  B. 
Monr.  404,  it  was  held,  the  municipal  authority  of  a  city  might  lawfully  alter  the 
grade  of  a  street,  for  any  public  purpose,  without  incurring  any  responsibility  to 
the  adjacent  landholders,  and  might  authorize  the  passage  of  a  railway  through 
the  city,  along  the  streets,  and  give  them  the  power  to  so  alter  the  grade  of  the 
streets,  as  should  be  requisite  for  that  purpose,  this  being  done  at  the  expense  of 
the  company,  and  by  paying  damages  to  such  adjacent  proprietors  as  should  be 
entitled  to  them.  But  one,  who  urged  the  laying  of  the  road  in  that  place,  on 
the  ground  that  it  would  benefit  him,  and  who  was  thereby  benefited,  cannot  re- 
cover damages  of  the  company,  upon  the  maxim,  "volenti  non  Jit  injuria.'1''  A 
railway,  when  so  authorized,  "  is  not  a  purpresture,  or  encroachment,  upon  the 
public  property  or  rights." 

And  where  a  railway  company  erect  a  fence  upon  land  which  they  own  in  fee, 
for  the  purpose  of  keeping  the  snow  off  their  road,  they  are  not  liable  for  dam- 
ages sustained  by  the  owner  of  land  upon  the  opposite  side  of  the  fence,  by  the 
accumulation  of  snow,  occasioned  by  the  fence.  Carson  v.  Western  Railw., 
Mass.  Sup.  Court,  20  Law  Rep.  350;  s.  c.  8  Gray,  423.  See  also  Morris  & 
Essex  Railw.  v.  Newark,  2  Stock.  Ch.  352. 

And  where  the  act  complained  of  is  the  construction  of  an  embankment,  by  a 
railway  company,  at  the  mouth  of  a  navigable  creek,  in  which  the  plaintiff  has  a 
prescriptive  right  of  storing,  landing,  and  rafting  lumber,  for  the  use  of  his  saw- 
mill, whereby  the  free  flow  of  the  water  is  obstructed,  and  the  plaintiff  thereby 
deprived  of  the  full  enjoyment  of  his  privilege,  the  injury  is  regarded  as  the 
direct  and  immediate  consequence  of  the  act  of  the  company,  and  they  are  liable 
for  the  damages  thereby  sustained.  Tinsman  v.  The  Belvidere  Delaware  Railw. 
Co.,  2  Dutcher,  148. 

See  also  Rogers  v.  Kennebec  &  Portland  Railw.,  35  Me.  319 ;  Burton  v. 
Philadelphia  W.  &  B.  Railw.,  4  Harr.  252;  Hollister  v.  Union  Co.,  9  Conn. 
436;  Whittier  v.  Portland  &  Kennebec  Railw.,  38  Maine,  26. 

5  Whitcomb  v.  Vt.  Central  Railw.  Co.,  25  Vt.  69 ;  Hooker  v.  N.  H.  &  N.  Y. 

[*294,  295] 


812  EMINENT    DOMAIN.  PART  III. 

diverting  watercourses  and  streams,  and  not  properly  restoring 
them,6  whereby  lands  are  overflowed  or  injured.5 

I.  And  the  remedy  given  by  statute  for  taking  or  injuriously 
affecting  lands  is  exclusive  of  all  remedies,  at  common  law,  by 
action,  or  bill  in  equity,  unless  provided  otherwise  in  the  statute.6 

."».  Bui  in  one  English  case,7  the  House  of  Lords  held,  that 
*  a  railway  company  which  had  been  condemned  to  pay  for  land, 
the  owner  reserving  the  minerals,  were  not  liable  to  the  land- 
owner, by  reason  of  his  inability  to  work  a  mine  which  he  had 
discovered  under  the  railway.  The  Lord  Chancellor  said,  "  The 
conveyance  of  the  surface  of  land  gives  to  the  grantor  an  implied 
right  of  support,  sufficient  for  the  object  contemplated,  from  the 
soil  of  the  grantor  adjacent  as  well  as  subjacent." 

Railw.  Co.,  14  Conn.  146;  post,  §  79.  And  there  is  the  same  liability  although 
the  lands  are  not  situate  upon  the  stream.  Brown  v.  Cayuga  &  Susquehanna 
Railw.,  12  N.  Y.  486. 

A  party  is  liable  to  an  action  for  diverting  the  water  from  a  spring,  which  ran 
in  a  well-defined  channel  into  a  stream  supplying  a  mill,  at  the  suit  of  the  mill- 
owner,  notwithstanding  he  had  permission  from  the  owner  of  the  land  where  the 
spring  arose.  Aliter  if  the  spring  spread  out  upon  the  land,  having  no  channel. 
As  the  land-owner  might  drain  his  land,  so  he  may  give  permission  to  others  to 
do  so.  Dudden  v.  The  Union,  1  Hurl.  &  Nor.  627.  See  also  Brown  v.  Illius, 
27  '  !onn.  84  ;  Robinson  v.  New  York  &  Erie  Railw.,  27  Barb.  512 ;  Waterman 
P.  Conn.  &  Pass.  Riv.  Railw.,  30  Vt.  610;  Henry  v.  Vermont  Central  Railw., 
id.  638.  But  in  this  last  case  it  was  decided  that  the  effect  of  erecting  a  bridge 
in  a  stream  upon  the  course  of  the  current  below  was  so  far  incapable  of  being 
known  or  guarded  against,  that  there  was  no  duty  imposed  upon  railway  corn- 
pan  its  to  guard  against  an  injury  to  land-owners  below  by  a  change  of  the  cur- 
rent See  also  New  Albany  &  C.  Railw.  Co.  v.  Higman,  18  Ind.  77  ;  Same  v. 
Huff,  19  id.  315;  Colcough  v.  Nashville  &  N.  W.  Railw.  Co.,  2  Head,  171. 
And  in  Cracknell  v.  Thetford,  Law  Rep.  4  L.  R.  C.  P.  629,  it  was  held  that  where 
a  municipality,  by  act  of  parliament,  is  authorized  to  improve  the  navigation  of  a 
navigable  river,  and  in  so  doing  erect  staunches  in  the  stream,  whereby  seaweed 
and  Band  accumulate,  so  as  to  cause  the  stream  to  overflow  and  do  damage  to  a 
riparian  owner,  he  would  have  no  remedy  against  the  corporation,  unless  some 
duty,  in  that  respect,  were  imposed  by  the  act. 

na  r.  Eastern  Counties  Railw.,  2  Q.B.  347,  569  ;  s.  c.  3  Railw.  C.  466. 
But  in  this  case  the  act  expressly  provided,  that  the  verdict  and  judgment  should 
be  conclusive  and  binding,  which  most  railway  acts  do  not ;  but  it  seems  ques- 
tionable if  this  will  make  any  difference.  E.  &  W.  I.  Docks,  &c.  v.  Gattke,  3 
Mac.  &  Got.  L55;  s.  c.  3  Eng.  L.  &  Eq.  59;  post,  §  81. 

7  Caledonia  Railw.  v.  Sprot,  2  McQu.  Ho.  Lds.  499;  s.  c.  39  Eng.  L.  &  Eq. 

16.     But  in  Bradley  v.  N.  York  &  New  H.  Railw.,  21  Conn.  294,  where  the 

defendants'  charter  gave  them  power  to  take  land,  and  made  them  liable  for  all 

damages  to  any  person  or  persons,  and  they  excavated  an  adjoining  lot  to  plain- 

[*2!<«iJ 


§  75.  ACTION   FOR   CONSEQUENTIAL   DAMAGES.  313 

6.  And  it  has  been  held,  that  in  estimating  damages  to  a  railway 
in  consequence  of  laying  a  highway  across  land  occupied  by  them, 
it  is  not  proper  to  take  into  account  the  probable  increase  of  busi- 
ness to  the  company  in  consequence.8 

7.  And  where  the  company  take  land,  but  decline  to  purchase 
the  minerals  after  notice  from  the  owner  of  his  intention  to  work 
them,  pursuant  to  the  English  statute,  the  company  is  not  entitled 
to  the  subjacent  or  adjacent  support  of  the  minerals.  And  where 
the  company  gave  notice,  under  the  statute,  that  the  working  of 
the  mines  was  likely  to  injure  the  railway,  the  owner  was  held 
entitled  to  recover  compensation  which  had  been  assessed  under 
the  statute.9 

tiff's,  so  as  to  weaken  the  foundations  of  his  house,  and  erected  an  embankment 
in  the  highway  opposite  his  house,  so  as  to  obscure  the  light,  and  render  it  other- 
wise unfit  for  use,  it  was  held,  that  this  did  not  constitute  a  taking  of  plaintiff's 
land,  but  that  defendants  were  liable  to  consequential  damage  under  their  charter. 

But  in  the  early  case  of  the  Wyrley  Nav.  v.  Bradley,  7  East,  368,  it  is  con- 
sidered that,  where  the  act  of  parliament  reserved  the  right  to  dig  coal  to  the 
proprietor  of  mines,  unless  the  company,  on  notice,  elected  to  purchase  and 
make  compensation,  where  the  canal  was  damaged  by  the  near  approach  of  the 
mine,  after  such  notice,  and  no  compensation  made,  the  coal-owner  was  not  lia- 
ble, although  it  is  there  said  to  be  otherwise  in  case  of  a  house,  undermined  by 
digging  on  the  soil  of  the  grantor.  But  this  case  seems  to  turn  upon  the  reser- 
vation in  the  grant. 

8  Boston  &  Maine  Railw.  v.  County  of  Middlesex,  1  Allen,  324.  The  reser- 
vation in  a  deed  of  land  to  a  railway  company  of  the  right  to  make  a  crossing 
over  the  land,  creates  an  easement  in  the  land,  but  does  not  extend  such  ease- 
ment across  the  other  lands  o    the  company.     lb. 

9  Fletcher  v.  Great  Western  Railw.,  4H.&K  242.  And  in  North  Eastern 
Railw.  Co.  v.  Elliott,  J.  &  H.  145;  s.  c.  6  Jur.  (N.  S.)  817,  it  was  held  that  the 
general  principle,  that  a  vendor  of  land  sold  for  a  particular  use  cannot  derogate 
from  his  own  grant  by  doing  any  thing  to  prevent  the  land  sold  from  being  put  to 
that  use,  applies  to  sales  to  railways  under  compulsory  powers.  But  it  was  here 
said  that  this  principle  will  not  compel  the  vendor  of  land  to  perpetuate  any  thing 
upon  the  portion  of  the  land  retained  by  him,  which  is  merely  accidental,  though 
existing  and  of  long  standing  at  the  date  of  the  sale.  Hence,  where  a  railway 
company  took  land  for  a  bridge  in  a  mining  district,  where  a  shaft  had  been  sunk 
many  years  before,  but  the  working  of  the  mines  abandoned  and  the  shaft  filled 
with  water  for  a  long  time  before  the  taking  of  the  land,  it  was  held  that  the  land- 
owner was  not  precluded  from  draining  the  water  and  working  the  mine,  although 
the  effect  must  be  to  lessen  the  support  of  the  bridge  to  some  extent,  by  with- 
drawing the  hydrostatic  pressure  upon  the  roof  of  the  mine,  and  the  consequent 
support  of  the  superincumbent  strata  of  earth. 

[*296] 


314 


EMINENT    DOMAIN. 


PART  III. 


♦SECTION     XIV. 


Right  to  occupy  Highway. 


1.  Decisions  conflicting. 

'  held  that  owners  of  the  fee  were  en- 
:,,  additional  damages. 

3.   Principle  veins  to  require  this. 
I    .1/  my  cases  take  a  different  view. 
:,.  /    lislatures  mag  and  should  require  such 
additional  compensation. 

6.  Courts  of  equity  will  not  enjoin  railways 

from  occupying  streets  of  a  city. 

7.  Some  of  the  states  require  such  compensa- 

tion. 
n.  11.  All  do  not.     But  the  English  courts, 
principle,  and  many  of  the  state  courts, 
do  requin  it,  as  matter  of  right. 

8.  lliri  nt  d<  visions  upon  the  right  to  occupy 

the  highway. 
1.   The  decisions  in  the  state  of  New  York 
require  compensation  to  the  owner  of  the 
fee. 


2.  Distinction  between  streets  of  cities  and 

highways  in  the  country. 

3.  Legislature    may    control    existing    rail- 

ways. 

4.  In  Ohio  the  owner  of  the  fee  may  claim 

indemnity  against  additional  injury. 

5.  True  distinction,  whether  the  use  is  the 

same. 

6.  The  present   inclination   seems  to  be  to 

require   additional    compensation  for 
laying  street  railway  in  highway. 

7.  Cases  in  the  opposite  direction.     Judge 

Ellsworth's  opinion. 

8.  Explanation  of  the  apparent  confusion. 

9.  Where    permanent    erections    made    in 

street,  compensation  must  be  made. 
10.  Rights  of  land-oivners  as  to  obstructing 

railway. 
11  $•  n.  25.  Recent  cases  in  New  York. 


§  76.  1.  The  decisions  are  contradictory,  in  regard  to  the  right 
of  a  railway  company  to  lay  its  track  along  a  common  highway, 
without  making  additional  compensation  to  land-owners  adjoining 
such  highway,  and  who,  in  the  country,  commonly  own  to  the 
middle  of  the  highway. 

2.  In  some  of  the  early  cases,  upon  this  subject,  it  seems  to 
have  been  considered,  that,  under  such  circumstances,  the  land- 
owners were  entitled  to  additional  compensation,  when  the  land 
was  converted  from  a  common  carriage-way  to  a  railway.1 

1  Trustees  of  the  Presbyterian  Society  in  Waterloo  v.  The  Auburn  &  Roches- 
ter  RaUw.  Co.,  3  Hill  (N.  Y.),  567.  The  case  of  Fletcher  v.  Auburn  &  Syra- 
Lailw.  Co.,  25  Wend.  462,  might  have  been  put  upon  the  same  ground,  but 
is  not.  The  ground  assumed  is,  that  the  land-owners  are  entitled  to  consequen- 
tial damage,  in  consequence  of  the  new  use  to  which  the  land  is  put,  which 
amounta  to  nearly  the  same  thing.  Philadelphia  &  Trenton  Railw.,  6  Wharton, 
26;   Miller  v.  The  Auburn  &  Syracuse  Railw.  Co.,  6  Hill  (N.  Y.),  61;  Mahon 

Dtica   &  Schenectady  Railw.,  Lalor's  Supp.  to  Hill  &  Denio,  156.     And  in 

Ramsden  v.  The  Manchester  South  Junction  &  Alt.  Railw.,  1  Exeh.  723,  the 

Court  of  Exchequer  expressly  decide,  that  a  railway  company  has  no  right  even 

to  tunnel  under  a  highway,  without  making  previous  compensation  to  the  land- 

[*297] 


§  76.  RIGHT  TO   OCCUPY   HIGHWAY.  315 

*  3.  There  is  certainly  great  reason  in  this  view,  inasmuch  as 
the  land-owner's  entire  damage  is  to  be  assessed,  at  once,  and  it 

owner.  Seneca  Road  v.  Auburn  Railw.,  5  Hill,  170;  Troy  v.  Cheshire  Railw. 
Co.,  3  Foster,  83.  But  a  distinction  is  taken  between  the  property  of  adjoining 
land-owners  in  the  highway  or  street  in  cities,  and  in  the  country.  In  the  former 
it  has  been  held  that  the  fee  of  the  streets  is  under  the  sole  control  of  the  munici- 
pal authorities,  and  that  it  is  no  perversion  of  the  legitimate  use  of  the  streets  to 
allow  a  railway  company  to  lay  their  track  upon  them.  Plant  v.  Long  Island 
Railw.,  10  Barb.  26;  Adams  v.  Saratoga  &  Washington  Railw.,  11  Barb.  414; 
Chapman  v.  Albany  &  Schenectady  Railw.,  10  Barb.  360;  Drake  v.  Hudson 
River  Railw.,  7  Barb.  508 ;  Applegate  v.  Lexington  &  Ohio  Railw.,  8  Dana,  289  ; 
Wolfe  v.  Covington  &  Lexington  Railw.,  15  B.  Monr.  404. 

In  Williams  v.  New  York  Central  Railw.,  18  Barb.  222,  246,  the  court  say: 
"  A  railroad  is  only  an  improved  highway,  and  the  use  of  a  street,  by  a  railway, 
is  one  of  the  modes  of  enjoying  a  public  easement."  But  see  this  case  reversed, 
post.  A  general  power  to  pass  highways  in  the  construction  of  a  canal,  or  rail- 
way, has  been  held  to  include  turnpikes  also.  Rogers  v.  Bradshaw,  20  Johns. 
735;  White  River  Turnpike  Co.  v.  Vermont  Central  Railw.,  21  Vt.  590.  But 
the  grant  of  a  railway  from  one  terminus  to  another,  without  prescribing  its 
precise  course  and  direction,  does  not,  prima  facie,  confer  power  to  lay  out  the 
railway  upon  and  along  an  existing  highway.  But  it  is  competent  for  the  legis- 
lature to  grant  such  authority,  either  by  express  words,  or  necessary  implication  ; 
and  such  implication  may  result,  either  from  the  language  of  the  act,  or  from  its 
being  shown,  from  an  application  of  the  act  to  the  subject-matter,  that  the  rail- 
way cannot,  by  reasonable  intendment,  be  laid  in  any  other  line.  Springfield  v. 
Connecticut  River  Railw.,  4  Cush.  63;  s.  c.  1  Redf.  Am.  Railw.  Cases,  299.  But, 
in  general,  the  adjoining  owner  of  land  to  a  highway  is  entitled  to  additional  com- 
pensation, where  it  is  put  to  a  different  and  more  dangerous  use.  And  towns 
have  an  interest  in  highways  and  bridges,  which  will  enable  them  to  maintain  an 
action  upon  the  case  for  their  obstruction  or  destruction,  and  the  conversion  of 
the  materials.  Troyw.  Cheshire  Railw.,  3  Foster,  83.  But  the  town  is  not  liable 
to  pay  damages  assessed,  by  the  selectmen,  in  laying  out  a  highway,  at  the  request 
of  a  railway  company,  made  necessary  to  supply  the  place  of  one  taken  by  the 
company  for  their  track.     Ellis  v.  Swanzey,  6  Foster,  266. 

In  general,  it  may  be  stated  as  the  settled  doctrine  of  most  of  the  states,  that 
the  ow-ner  of  land,  bounded  upon  a  highway,  owns  to  the  centre  of  the  way.  Buck 
v.  Squiers,  22  Vt.  484,  495.  The  general  rule  as  to  monuments,  referred  to  in 
deeds  of  land,  undoubtedly  is,  that  the  centre  of  such  monuments  is  intended, 
whether  it  be  stake,  stone,  tree,  rock,  or  a  highway  or  stream.  It  is  undoubt- 
edly more  a  rule  of  policy  than  of  intention,  and,  as  such,  to  answer  its  end, 
should  be  applied  in  every  case,  unless  a  clearly  defined  intention  to  the  contrary 
be  made  to  appear.  3  Kent,  Coram.  433;  Chatham  v.  Brainerd,  11  Conn.  60; 
Champlin  v.  Pendleton,  13  Conn.  23 ;  Livingston  v.  Mayor  of  New  York,  8 
Wend.  85,  106  ;  Starr  v.  Child,  20  Wend.  149  ;  s.  c.  4  Hill,  369  ;  Canal  Coram. 
v.  People,  5  Wend.  423 ;  s.  c.  13  Wend.  355 ;  Johnson  v.  Anderson,  18  Ale.  76 ; 
Bucknam  v.  Bucknam,  3  Fairfield,  463;  Leavitt  v.  Towle,  8  N.    Hamp.  96; 

[*298] 


816  EMINENT    DOMAIN.  PART  III. 

•  oould   neyer  be  done  understandingly,  unless  the  use  to  whieh  it 
to  be  put  were  known  to  the  assessors.     And  it  is  obvious, 

Dovaston  v.  Payne,  l'  Smith's  Leading  Cases,  90,  and  notes  by  Wallace  &  Hare; 
Nicholson  v.  New  York  &  New  Haven  Railw.,  22  Conn.  74. 

Hut  tl wner  of  the  fee  of  land,  over  which  a  highway  passes,  cannot  main- 
tain a  I'll  i"  equity,  to  enforce  an  order  of  commissioners,  as  to  the  manner  of 
constructing  a  railway,  where  it  crosses  the  highway,  but  the  same  should  be 
brought  by  the  principal  executive  officers  of  the  town  or  city.  Brainard  v.  Conn. 
River  Railw.,  7  Cush.  506.  The  court  say:  "  It  is  only  where  the  owner  suffers 
souk-  special  damage,  differing  in  kind  from  that  which  is  common  to  others,  that 
a  personal  remedy  accrues  to  him,  and  certainly  no  rule  of  law  rest's  on  a  wiser 
or  more  sound  policy.  Were  it  otherwise,  suits  might  be  multiplied  to  an  indefi- 
nite extent,  s<>  as  to  create  a  public  evil,  in  many  cases,  much  greater  than  that 
whirli  was  sought  to  be  redressed."  Stetson  c,  Faxon,  19  Pick.  147;  Proprie- 
tors of  Quincy  Canal  «.  Newcomb,  7  Met.  276;  Smith  v.  Boston,  7  Cush.  254; 
Hughes  '-.  Providence  &  Worcester  Railw.  Co.,  2  Rhode  Island,  493. 

In  Williams  r.  Natural  Bridge  Plank-Road  Co.,  21  Missouri,  580,  it  is  held, 
that  the  grant  of  the  right  of  locating  a  plank-road  upon  a  county  road,  does  not 
exclude  the  idea  that  the  owner  of  the  soil  over  which  the  road  passes  should 
have  compensation  for  any  injury  he  may  sustain  by  converting  a  county  road  into 
a  plank-road.  This  case  is  put,  by  the  court,  upon  the  ground,  that  the  plank- 
road  is  an  additional  burden  upon  the  soil,  and  that  for  this  the  land-owner  is  as 
much  entitled  to  compensation  as  if  his  land  had  originally  been  taken  for  the 
purpose  of  the  plank-road,  and  that  to  deny  all  redress  in  such  case  is  a  virtual 
violation  of  that  article  of  the  Constitution  giving  compensation  to  the  owner  of 
property  taken  for  public  use. 

This  is  undoubtedly  the  rule  of  the  English  law,  and  of  reason  and  justice, 
and  we  should  rejoice  to  see  it  prevail  more  extensively  in  this  country.  The 
American  courts  seem  to  have  been  sometimes  led  astray  upon  this  subject  by 
the  fallacy,  that  a  railway  is  merely  an  improved  highway,  which  for  many  pur- 
poses ii  is,  but  not  for  all,  any  more  than  a  canal.  See  also  Railroad  ex  parte, 
2  Rich.   l:;i. 

And  the  New  York  statute,  giving  railways  the  right  to  pass  upon,  or  over 
turnpikes,  plank-roads,  rivers,  &c,  by  restoring  such  ways,  rivers,  &c,  so  as  not 
unnecessarily  to  have  impaired  their  usefulness,  was  construed  not  to  preclude  a 
plank-road  from  recovering  of  the  railway  all  damages  sustained  by  them  in  a 
common  action  for  damages,  under  the  code,  the  company  having  entered  upon 
the  plank-road  without  causing  damages  to  be  assessed  under  the  statute.  Elli- 
cottville  Plank-Road  v.  Buffalo,  &c.  Railw.,  20  Barb.  644.  As  the  New  York 
Court  of  Appeals  have  changed  the  rule  upon  this  subject,  in  that  state,  since  the 
body  ol  this  work  was  through  the  press,  in  the  former  edition,  and  only  a  note 
of  the  case  was  inserted  at  the  close  of  that  edition,  we  deem  it  proper  here  to 
repeal  the  ruling.  Williams  v.  New  York  Central  Railw.,  16  N.  Y.  97.  The 
point  decided  is,  that  the  dedication  of  land  to  the  use  of  the  public  as  a  highway 
ol  authorize  it  being  taken  by  a  railway  company  for  their  track,  without 
compensation  to  the  owner  of  the  fee,  although  done  by  the  consent  of  the 
legislature,  and  of  the  municipal  authorities.     It  has  been  sometimes  held  that 

[*299] 


§  76.  RIGHT   TO    OCCUPY    HIGHWAY.  317 

*that  it  would  ordinarily  be  attended  with  far  more  damage  to  the 
remaining  land  to  have  a  railway  than  a  common  highway  laid 
across  it. 

*  4.  If  the  rule  of  estimating  damages,  according  to  the  money 
value  of  the  land  taken,  were  adopted,  there  would  be  more  *  rea- 
son in  saying  the  public  would  thereby  acquire  the  right  to  use  it 
for  any  purposes  of  a  road,  which  any  future  improvement  *  might 
suggest.  And  this  is  the  view  which  seems  very  extensively  to 
prevail  in  this  country.  It  was  long  since  settled  that  *  the  land- 
owner was  not  entitled  to  any  additional  damage,  by  reason  of  any 
alteration  in  the  construction  of  the  highway.2  Or  in  applying  it 
to  the  use  of  a  turnpike  road  where  toll  was  paid,  this  being  but  a 
different  mode  of  supporting  the  highway,  of  which  the  land- 
owner had  no  just  cause  of  complaint,  since  it  did  not  materially 
alter  the  use  of  the  land.3  And  the  same  rule  has  now  been  pretty 
extensively  extended  to  improvements  in  erecting  railways  along 
the  streets  and  highways.4  These  questions  depend  much  upon 
the  terms  of  the  charter  of  the  railway  company. 

the  laying  out  and  operating  a  horse  railway  in  the  streets  of  a  city  is  not  an 
additional  servitude  upon  the  soil,  for  which  the  owner  is  entitled  to  compensa- 
tion. Brooklyn  Central  &  Ja.  Railw.  v.  Brooklyn  City  Railw.,  33  Barb.  420. 
And  if  one  company  lay  their  track  across  the  track  of  another,  they  are  entitled 
to  no  compensation.     lb. 

2  Zimmerman  v.  The  Union  Canal  Co.,  1  Watts  &  Serg.  346  ;  Mayor  v.  Ran- 
dolph, 4  Watts  &  Serg.  514;  Gov.  &  Co.  of  Plate  Manufacturers  v.  Meredith, 
4  T.  R.  790;  Sutton  v.  Clark,  6  Taunton,  29;  Boulton  v.  Crowther,  2  B.  & 
C.  703  ;  The  King  v.  Pagham,  8  B.  &  C.  355  ;  Henry  v.  The  Alleghany  &  Pitts- 
burgh Bridge  Co.,  8  Watts  &  Serg.  86;  Shrunk  v.  Schuylkill  Nav.  Co.,  14  S. 
&  R.  71;  Commonwealth  v.  Fisher,  1  Penn.  467;  Hatch  v.  Vermont  Central 
Railw.,  25  Vt.  49;  Taylor  v.  City  of  St.  Louis,  14  Misso.  20;  Richardson 
v.  Vermont  Central  Railw.,  25  Vt.  465;  Callender  v.  Marsh,  1  Pick.  418; 
Rounds  v.  Mumford,  2  Rhode  Island,  154;  O'Connor  v.  Pittsburgh,  18  Penn. 
St.  187~;  Plum  v.  Morris  Canal  &  Bank  Co.  and  the  City  of  Newark,  2  Stock- 
ton's Ch.  256. 

3  Wright  v.  Coster,  3  Dutcher,  76. 

4  Plant  v.  Long  Island  Railw.  Co.,  10  Barb.  26.  But  see  Mifflin  v.  Harris- 
burg,  Portsmouth,  M.  &  L.  Railw.  Co.,  4  Harris  (Penn.),  182.  In  this  case 
the  act  required  payment  of  damage  to  all  who  were  injured  by  converting  a 
turnpike  into  a  railway,  and  it  was  held  a  receipt  in  full  to  the  turnpike  company 
did  not  bar  the  claim  of  an  adjoining  land-owner  for  additional  damages.  But 
the  levelling  of  a  street,  preparatory  to  laying  the  structure  of  a  railway,  is  not 
an  obstruction.  McLaughlin  v.  Charlotte  and  S.  C.  Railw.,  5  Rich.  583;  Ben- 
edict v.  Coit,  3  Barb.  459. 

[*300-304] 


;,|s  EMINENT    DOMAIN.  PART  III. 

Vii.l  as  it  is  confessedly  competent  for  the  legislature  to 
require  railways,  iii  laving  their  track  along  the  highways,  to 
make  compensation  to  the  adjoining  land-owners,  for  any  increased 
detriment,  or  to  be  liable  for  all  consequential  damage,5  and  as  it 
is  assuredly  just  and  equitable  to  do  so,  it  seems  desirable  it  should 
be  done.  And  in  those  states  and  countries  where  such  enter- 
prises have  become  so  far  matured  as  to  have  assumed  the  form  of 
a  settled  system,  it  more  commonly  is  done.  And  where  it  is  not, 
it  may  be  regarded  as  the  result  of  oversight  in  the  legislature. 
It  was  held  that  a  railway  is  liable  to  pay  damages  for  crossing  a 
turnpike  company's  road,  notwithstanding  the  legislature  gave  the 
right.8 

•  I.  Injunctions  in  equity  have  been  denied,  when  applied  for,  to 
restrain  railways  from  occupying  the  streets  of  cities  and  towns 
with  their  track,7  by  consent  of  the  municipal  authority. 

5  Bradley  v.  N.  Y.  &  N.  H.  Railw.  Co.,  21  Conn.  294. 

6  Seneca  Railw.  Co.  v.  Aub.  &  Roch.  Railw.  Co.,  5  Hill,  170.  And  the 
amount  of  damage  is  immaterial.  The  maxim,  de  minimis,  does  not  apply  to 
cases  of  plain  violation  of  right.     Id.  Coiven,  J. 

7  Hamilton  v.  New  York  &  Harlem  Railw.,  9  Paige,  171  ;  Hentz  v.  Long 
Is.  Railw.,  13  Barb.  646;  Chapman  v.  Albany  &  Sch.  Railw.,  10  Barb.  360; 
Lexington  &  Ohio  Railw.  v.  Applegate,  8  Dana,  289;  Drake  v.  Hudson  River 
Railw.,  7  Barb.  508;  Wetmore  v.  Story,  22  Barb.  414;  Milhau  v.  Sharp,  15 
Barl>.  193.  But  where  the  railway  is  constructed  without  the  legal  permission 
of  the  municipal  authorities  or  the  legislature,  along  the  streets  of  a  populous 
city,  it  becomes  a  nuisance,  and  courts  of  equity  will  prohibit  its  continuance,  at 
the  suit  of  individuals  who  are  tax-payers  and  property  owners  on  the  streets 
through  which  the  rails  are  laid.  In  a  case  in  New  Jersey,  Morris  &  Essex 
Railw.  v.  City  of  Newark,  2  Stockton's  Ch.  352,  the  right  of  a  railway  company 
to  occupy  the  streets  of  a  city  seems  to  have  been  examined  with  considerable 
care  by  the  chancellor,  but  the  cases  upon  the  subject  are  not  examined  very 
extensively,  and  reliance  is  there  placed  upon  the  case  of  Williams  v.  The  New 
Yuik  <  ientral  Railw.,  18  Barb.  222,  which  has  since  been  reversed  in  the  Court 

Appeals,  ante,  n.  1. 

'I  hero  is  one  distinction  here  adverted  to  that  is  not  named  in  other  cases,  so 
far  as  we  have  noticed,  that  so  long  as  the  highway  or  street  continues  to  be  used 
as  such,  tho  concurrent  use  of  it  by  a  railway  company  for  their  track,  by  con- 
g.  lit  ol  the  legislature  and  the  municipal  authorities,  does  not  entitle  the  owner 
of  the  fee  to  additional  compensation.  But  if  it  is  appropriated  exclusively  to 
tin-  use  ol  the  railway,  the  owner  is  then,  by  constitutional  provision,  entitled  to 
compensation,  the  discontinuance  of  the  highway  causing  a  reverter  of  the  fee 
to  the  owner.  This  qualification  takes  away  the  most  offensive  feature  of  what 
is  claimed,  in  some  of  the  cases,  the  right,  in  the  legislature  and  the  municipal 

[*305] 


§  76.  EIGHT   TO   OCCUPY   HIGHWAY.  319 

*  7.  But  in  one  well-considered  case,8  it  was  held,  that  where 
a  railway  company,  in  carrying  their  road  through  the  streets 
of  the  city  of  New  Haven,  found  it  necessary  to  carry  one  of 
the  streets  over  the  railway,  upon  a  high  bridge,  with  large  em- 
bankments at  each  end,  the  plaintiff  owning  the  land  upon  both 
sides  of  the  street,  and  no  compensation  being  assessed  to  him,  he 
*  might  recover  of  the  company  in  an  action  of  trespass,  for  any 

authorities,  to  transmute  a  common  highway  or  street  into  a  public  railway,  as 
one  of  those  improvements  in  the  mode  of  intercommunication  which  the  progress 
of  events  had  brought  about,  and  which  must  be  regarded  as  fairly  within  the 
contemplation  of  the  parties  at  the  time  of  the  original  taking. 

But,  in  the  present  case,  there  being  no  necessity  for  the  use  of  the  street  in 
question  by  the  railway,  but  merely  a  convenience,  and  no  express  consent  of 
the  municipal  authorities  for  such  use,  it  was  held  that  no  right  to  such  use  could 
be  implied,  from  the  grant  of  their  charter,  between  certain  termini,  which  might 
be  obtained  by  a  route  less  injurious  to  the  public,  and  that  the  consent  of  the 
municipal  authorities  was  not  to  be  inferred  from  their  not  interfering  until  the 
track  had  been  laid  and  used  for  several  years,  and  large  sums  of  money  thus 
invested,  and  important  interests  accrued,  and  the  injunction  restraining  the  au- 
thorities from  removing  the  track  was  dissolved.  The  extent  to  which  a  railway 
company  must  obstruct  the  highway,  at  an  intersection  of  the  two,  to  create  an 
actionable  impediment  to  the  public  travel,  is  extensively  considered  in  the  case 
of  Great  Western  Railw.  Co.  v.  Decatur,  33  111.  381.  It  was  here  decided,  that 
twelve  feet  of  the  hig*hway  remaining  unobstructed,  so  that  a  steady  team  might 
have  passed  in  safety,  is  not  enough  to  exonerate  the  railway  company  from  a 
charge  of  obstructing  the  passage  of  the  highway.  The  obstruction  of  the  public 
right  of  way  in  a  river,  whether  navigable  in  the  old  sense  of  being  a  tidal  stream, 
or  not,  is  a  public  nuisance,  for  which  an  injunction  will  be  granted  at  the  suit 
of  one  suffering  special  damage,  or  of  the  Attorney-General.  Atty. -General  v. 
Earl  of  Lonsdale,  17  W.  R.  219  ;  s.  c.  7  L.  R.  Eq.  377. 

8  Nicholsons.  New  York  &  New  Haven  Railw.,  22  Conn.  74.  If  there  is 
any  departure  from  general  principles,  in  this  case,  it  is  in  holding  the  railway 
company  justified  in  making  alterations  in  highways,  which  cause  no  appreciable 
injury  to  the  land-holders,  and  this  certainly  commends  itself  to  our  sense  of 
reason  and  justice.  It  may  be  somewhat  questionable,  perhaps,  whether  the 
charge  of  the  judge,  who  tried  the  case  at  the  circuit,  was  not  based  upon  the 
technical  rules  applicable  to  the  case,  namely,  that  the  company  were,  at  all 
events,  liable  for  nominal  damages,  and  for  all  actual  damages  in  addition.  But 
where  a  railway  company,  by  consent  of  the  mayor  and  aldermen  of  a  city,  under 
the  Revised  Statutes,  raise  a  street  to  enable  them  to  carry  their  road  under  it, 
they  become  primarily  liable  to  the  adjoining  land-owners  for  any  damage  to 
their  estates  thereby.  And  it  will  not  affect  the  liability  of  the  company,  that 
the  city  took  of  them  a  bond  of  indemnity,  and  appointed  a  superintendent  to 
take  care  of  the  public  interests  in  the  execution  of  the  work.  Gardiner  v.  Bos- 
ton &  Worcester  Railw.,  9  Cush.  1. 

[*306,  307] 


EMINENT   DOMAIN.  PART  III. 

appreciable  incidental  damages,  occasioned  by  thus  constructing 
their  road,  and  the  consequent  alteration  of  the  highway  or  street. 
Ami  as  the  company,  in  thus  constructing  their  road,  acted  under 
the  authority  of  the  legislature,  they  were,  prima  facie,  not  to 
be  regarded  as  trespassers,  but  where  they  caused  any  appre- 
ciable damage  to"  the  land-owners  along  the  line  of  the  road,  they 
were  liable  in  this  form  of  action.  The  court  in  this  case,  Hin- 
man,  J.,  assumed  the  distinct  ground,  that  the  railway,  by  laying 
their  track  upon  the  plaintiff's  land,  which  was  before  subject  to 
the  servitude  of  the  highway,  or  street,  would  become  liable  "  for 
such  entry  "  upon  the  land.  "  In  such  case,"  says  the  learned 
judge,  "  the  subjecting  the  plaintiff's  property  to  an  additional 
Bervitude,  is  an  infringement  of  his  right  to  it,  and  is,  therefore, 
an  injury  and  damage  to  him.  It  would  be  a  taking  of  the  prop- 
erty of  the  plaintiff,  without  first  making  compensation."  And 
the  same  court,  in  a  later  case,9  held  that  the  location  of  a  rail- 
way upon  a  public  highway  is  the  imposition  of  a  new  servitude 
upon  tbe  land,  and  the  owner  of  the  fee  is  entitled  to  compensation 
for  tbe  damage  caused  thereby.  And  this  includes  all  incidental 
damage  to  land  adjoining,  and  which  belongs  to  the  same  pro- 
prietor. In  a  case  in  Pennsylvania,10  it  is  held  that  the  legislature 
may  authorize  the  construction  of  a  railway  on  a  street,  or  public 
highway,  and  the  inconvenience  thereby  incurred  by  the  citizens 
must  be  borne  for  the  sake  of  the  public  good.  But  where  this  is 
claimed  by  construction  and  inference,  all  doubts  are  to  be  solved 
against  the  company.  And  where,  by  the  act  of  incorporation  of 
a  municipality,  it  was  provided  that  the  "streets,  lanes,  and  alleys 
thereof"  should  for  ever  be  and  remain  public  highways,  it  was 
held  that  the  municipal  authorities  could  not  authorize  the  con- 
struction of  a  railway  thereon.10  But  where  the  state  conveys  to  a 
city  the  title  of  a  common,  reserved  in  the  grant  of  the  township 
for  a  "  common  pasture,"  subject  to  the  easement  of  the  lot  hold- 
ers, of  common  of  pasturage,  *  it  was  held  that  the  city  might  law- 
fully grant  a  portion  of  tbe  same  to  a  railway  company  for  the 
purpose  of  constructing  their  road.11 

[ml  ..v  /  .  The  Union  Branch  Railw.  Co.,  26  Conn.  249. 
I     mmonwealth  v.  Erie  &  Northeast  Railw.,  27  Penn.  St.  339.     See  also 
Alleghany  v.  Ohio  &  Pennsylvania  Railw.,  26  Penn.  St.  355. 

11  Alleghany  v.  Ohio  &  Pennsylvania  Railw.,  26  Penn.  St.  355.     Rut  the  grant 

308] 


§  76.  RIGHT   TO   OCCUPY    HIGHWAY.  321 

*  8.  Since  the  second  edition  of  this  work,  the  decisions  have 
been  considerably  numerous  in  regard    to  the  right  of   railways 

of  fifty  feet,  through  such  a  common,  in  a  densely  populated  city,  will  only  con- 
vey the  right  to  the  railway  to  erect  their  road  thereon,  and  to  receive  and  dis- 
charge passengers  and  freight,  and  will  not  give  the  right  to  erect  depots, 
car-houses,  or  other  structures,  for  the  convenience  or  business  of  the  road  ;  or 
to  permit  their  cars  and  locomotives  to  remain  on  their  track  longer  than  is 
necessary  to  receive  and  discharge  freight  and  passengers.     lb. 

And  it  might  have  been  regarded  as  the  settled  doctrine  of  the  New  York 
courts,  until  the  case  of  Williams  v.  N.  Y.  Central  R.  ante;  n.  1,  that  the 
owner  of  the  fee  of  land  dedicated  to  the  use  of  a  highway  or  street,  and  which 
the  legislature  devote  to  the  use  of  a  railway,  had  no  claim  upon  the  company 
for  compensation,  by  reason  of  the  additional  servitude  thereby  imposed  upon 
the  land.  Corey  v.  Buffalo,  Corning,  &  New  York  Railw.,  23  Barb.  482;  Rad- 
cliffy.  Mayor  of  Brooklyn,  4  Comst.  195  ;  Gould  v.  Hudson  River  Railw.,  2  Seld. 
522.     But  this  is  now  otherwise  in  New  York. 

And  so  late  as  January,  1857,  the  subject  is  elaborately  examined  by  Vice- 
Chancellor  Kindersley,  in  Thompson  v.  West  Somerset  Railw.,  29  Law  Times, 
7,  in  relation  to  the  cestui  s  que  trust  of  a  pier,  over  which  the  act  of  parliament, 
in  express  terms,  authorized  the  company  to  construct  their  road,  but  which  they 
had  done  without  proceeding  under  the  statutes,  to  appraise  compensation,  and 
the  court  held  them  trespassers  and  an  injunction  was  granted  until  the  company 
made  compensation. 

And  in  a  case  in  Indiana,  the  subject  is  considered,  and  although  the  author- 
ities are  not  much  reviewed,  the  conclusions  of  the  court  conform  so  closely  to  the 
broadest  views  of  reason  and  justice,  that  we  shall  insert  an  extended  note  of  the 
points  decided. 

A  city  ordinance  authorized  the  construction  of  a  railway,  on  either  of  two 
streets,  through  the  corporate  limits,  under  suitable  restrictions  as  to  grade.  It 
was  considered  that  the  ordinance  did  not  authorize  the  company  to  substantially 
alter  the  grade  of  the  street.     It  was  further : 

Held,  that  besides  the  right  of  way,  which  the  public  have  in  a  street,  there  is 
a  private  right,  which  passes  to  a  purchaser  of  a  lot  upon  the  street,  as  appurte- 
nant to  it,  which  he  holds  by  an  implied  covenant,  that  the  street  in  front  of  his 
lot  shall  for  ever  be  kept  open,  for  his  enjoyment,  and  for  any  obstruction  thereof 
to  the  owner's  injury,  he  may  maintain  an  action. 

The  right  which  the  owner  of  a  lot  has  to  the  enjoyment  of  an  adjoining  street 
is  part  of  his  property,  and  can  only  be  taken  for  public  use,  on  just  compensa- 
tion being  made,  pursuant  to  the  constitution.  Tate  v.  Ohio  &  Miss.  Railw.,  7 
Porter  (Ind.),  479. 

And  in  Haynes  v.  Thomas,  id.  38,  where  the  cases  are  more  fully  examined, 
the  same  general  propositions  are  maintained.  It  is  there  said,  the  right  of  the 
owner  of  a  town  lot,  abutting  upon  a  street,  to  use  the  street,  is  as  much  prop- 
erty as  the  lot  itself,  and  the  legislature  has  as  little  power  to  take  away  one  as 
the  other. 

These  general  propositions  are  repeated,  and  somewhat  varied,  in  the  notes 
of  this  case.  And  although  we  think,  upon  principle,  the  right  as  against  a  rail- 
vol.  i.  21  [*oO(Jj 


322  EMINENT   DOMAIN.  TART  III. 

to  occupy  the  Btreeta  and  highways,  without  making  additional 
compensation  to  the  owners  of  the  fee  of  the  lands  across  which 
in,-  are  laid.  The  principles  involved  are  much  the  same 
as  have  I d  already  stated ;  bill  it  will  be  important  to  the  pro- 
fession to  knew  them  in  detail. 

1.  In  a  Bomewhat  recent  case  12  it  was  decided,  that  the  occupa- 
tion of  the  highway  by  the  track  of  a  railway  company,  is  the 
imposition  of  an  additional  servitude,  and  is  the  taking  of  the 
property  of  the  owner  of  the  fee  in  the  lands  over  which  the  same 
is  laid,  within  those  constitutional  prohibitions  requiring  compen- 
sation where  private  property  is  taken  for  public  use  ;  and  that 
consequently  the  company  can  acquire  no  right  to  such  use,  under 
legislative  and  municipal  license,  without  compensation,  and  that 
there  is  no  difference  in  this  respect  between  railways  operated  by 
Bteam  and  by  other  motive  power.  But  in  another  case  it  was 
held,  that  any  legislative  act  empowering  a  railway  company  to 
occupy  certain  streets  and  avenues  in  the  city  of  New  York,  should 
not  he  construed  as  not  intended  to  give  such  permission  without 
compensation.13  In  the  main,  this  case  assumes  the  opposite 
ground  from  that  declared  by  Craig  v.  Rochester  City  and  Br. 
Railway  Co.12  The  question  came  up  for  revision  in  the  Court  of 
A.ppeals,  in   the  case  of  the  People   v.   Kerr,14    where  the  court 

way  company  should  be  placed  upon  the  basis  of  its  being  an  additional  and  more 
O]  pressive  burden  and  servitude  upon  the  land,  which"  entitles  the  land-owner  to 
additional  compensation,  there  can  be,  in  our  judgment,  no  manner  of  question 
of  the  general  soundness  of  the  above  decisions.  And  the  latter  case,  being  that 
of  the  voluntary  dedication  of  property,  by  the  owner,  for  the  purposes  of  a 
Btreet  and  highway,  is  very  well  calculated  to  illustrate  the  hardship  and  injustice 
of  wresting  such  use  to  the  purposes  of  a  railway,  so  much  more  burdensome  and 
injurious.  So  that  the  general  current  of  the  American  law  upon  this  subject 
may  now  be  regarded  as  the  same  with  the  English  rule  already  stated.  Protz- 
inau  v.  End.  &  (in.  Railw.,  9  Ind.  4G7 ;  Evansville  &  C.  Railw.  v.  Duke,  9  Ind. 
See  al  o  Marquis  of  Salisbury  v.  Great  Northern  Railw.,  5  C.  B.  (N.  S.) 
17!  :    B.C.  5  Jur.  (N.  S.)  70. 

11  <  Iraig  < .  Roi  hester  City  &  Br.  Railw.  Co.,  39  Barb.  494. 

13  People  o.  Kerr,  37  Barb.  357. 

14  -Jl   N.   Y.  188.     This  case   must  be   regarded  as  settling  the  law  in  this 

notwithstanding  Borne  conflict  in  the  decisions  of  their  different  supreme 

I  Le  is  thus  laid  down  by  Emott,  J.,  in  the  case  last  cited.     "It 

must  be  regarded  as  settled,  in  the  jurisprudence  of  this  state,  that  the  appro- 

priation  of  property  to  the  construction  or  use  of  a  railway  for  the  transportation 

of  property,  is  an  application  of  such  property  to  the  use  of  the  public.     The 

109] 


§  76.  .       RIGHT   TO    OCCUPY   HIGHWAY.  323 

maintained  *  the  proposition  that  the  construction  of  a  city  rail- 
way upon  the  surface  of  the  streets,  and  without  change  of  grade, 
is  an  appropriation  of  the  land  to  some  extent  to  public  use,  but 
the  court  held  that  the  original  owner  of  the  fee  of  the  streets  in 
the  city  of  New  York  had  no  such  remaining  interest  as  to  justify 
any  demand  for  compensation  on  his  part  for  reasons  before 
stated.15 

2.  The  same  distinction,  as  to  the  right  of  the  owner  of  the  fee 
to  demand  compensation,  between  the  use  of  the  streets  of  towns 
and  cities  for  the  track  of  railways,  and  of  highways  in  the  country, 
is  observed  in  many  of  the  other  states.  Thus  in  two  cases  in 
Iowa  this  distinction  is  maintained.16 

3.  The  question  of  the  location  of  railways  across  or  along  the 
streets  and  highways  of  cities  and  towns  as  well  as  in  the  rural 
districts,  is  extensively  discussed  in  a  case  in  Maine,  which  came 
more  than  once  before  the  courts.17  But  most  of  the  proposi- 
tions here  maintained  are  more  or  less  affected  by  statutory  pro- 
visions. It  is  here  declared  (which  indeed  is  found  in  many  other 
cases,  and  is  sufficiently  obvious  in  itself)  that  statutes  regulating 
the  operation  of  railways  are  to  be  considered  as  affecting  only  the 
general  police  of  the  state,  and  as  applying  equally  to  existing  and 
future  railways  ;  but  even  matters  of  police  affecting  the  construc- 
tion of  railways  cannot  reasonably  be  construed  as  having  a  retro- 
active operation,  so  as  to  require  a  railway  company  to  undo  and 
do  over  again  the  work  of  construction. 

4.  The  cases18  decided  in  Ohio,  in  regard  to  the  use  of  highways 
*  and  streets  for  the  purpose  of  street  railways,  do  not  appear  to  be 
altogether  decisive  of  the  principle  involved.     It  seems  to  be  there 

doctrine  applies  to  all  railways,  whether  traversing  the  state  or  the  streets  of  a 
city,  and  of  course  the  motive  power  used  does  not  affect  the  question.  So,  also, 
the  uniform  course  of  decisions  and  legal  proceedings  since  Bloodgood  v.  Mohawk 
&  Hudson  Railw.  (18  Wend.  1),  and  founded  upon  the  principles  there  asserted, 
is  conclusive  that  it  does  not  affect  the  question  of  public  use  in  such  cases,  that 
the  property  applied  to  it  is  to  be  appropriated  by  a  corporation  or  by  individ- 
uals, and  not  directly  by  the  state  or  the  people,  or  that  the  road  is  not  of  a 
character  to  be  actually  used  by  any  and  every  citizen  with  his  own  vehicle. 

15  Ante,  §  70,  pi.  13. 

16  Milburn  v.  City  of  Cedar  Rapids,  &c,  12  Iowa,  246 ;  Haight  v.  The  City 
of  Keokuk,  &c,  4  id.  199. 

17  Veazie  v.  Mayo,  45  Me.  5G0;  s.  c.  49  id.  156. 

18  Crawford  v.  Delawne,  7  Ohio  (N.  S.),  459;  Cincinnati  &  Spring  Grove 
Avenue  Railw.  Co.  v.  Cumminsville,  14  Ohio  (N.  S.),  523. 

[*310,  311] 


EMINENT    DOMAIN.  PART  III. 

regarded,  so  far  as  a  street  or  highway  can  be  appropriated  for 
such  use,  without  appreciable  damage  to  the  owner  of  the  land 
adjoining,  that  he  is  not  entitled  to  any  additional  compensation, 
but  that  if  from  change  of  grade  or  any  other  cause,  there  is  any 
mtial  damage  inflicted  upon  the  abutters,  by  obstructing  access 
i  i  lands  or  buildings,  or  in  any  other  respect,  more  than  would 
have  resulted  from  the  use  in  the  ordinary  mode  for  a  highway, 
the  owner  of  the  fee  will  be  entitled  to  demand  additional  compen- 
sation. 

5.  Hut  it  is  obvious  that  the  difficulty,  in  point  of  principle,  lies 
somewhat  deeper.  For  although  the  rule  there  laid  down,  in  point 
of  equity,  may  1  »e  entirely  just  and  reasonable,  it  must  always 
prove  embarrassing  in  practice,  and  compel  an  appraisement  in 
each  particular  case,  in  order  to  insure  security.  The  true  prin- 
ciple undoubtedly  is,  that  if  the  use  is  substantially  the  same  as 
that  of  an  ordinary  highway,  no  additional  compensation  can  be 
required  ;  but  if  the  use  is  new,  and  distinct  from  that  of  an 
ordinary  highway,  the  owner  of  the  fee  is  entitled  to  additional 
compensation  in  every  case,  without  reference  to  special  damages  ; 
so  that  the  question  turns  upon  the  point  whether  the  use  of  a 
street  or  highway,  for  the  support  of  a  railway  track,  is  using  it 
for  a  highway  only.  As  such  use  of  the  street  for  street  railways 
is  of  necessity  solely  under  municipal  control,  and  is  a  use  to 
which  the  municipal  authorities  might  themselves  devote  the  street 
by  constructing  the  tracks  at  their  own  expense,  allowing  all  trav- 
ellers to  use  them  with  every  species  of  carriage,  it  seemed  nat- 
ural to  conclude  that  it  could  not  be  regarded  as  an  additional 
servitude  ;  but  the  current  of  authority  seems  to  be  setting  in  the 
opposite  direction. 

•i.  The  present  inclination  seems  to  be  to  make  no  distinction 
between  the  use  of  streets  by  steam  and  street  railways,  and  to 
require  compensation  in  both  cases  alike.19 

i .  There  arc  some  few  cases  in  different  states  which  still  ad- 
*  to  the  doctrine  that  the  laying  of  a  railway  track  for  the  pas- 

18  Fori  r.  Chicago  and  North  Western  Railw.  Co.,  14  Wis.  609;  City  of 
Janearrffle  >••  Milw.  &  Miss.  Railw.  Co.,  7  id.  484;  Pomeroy  v.  Chi.  &  Milw. 
Railw.  Co.,  16  id.  640;  Warren  v.  State,  5  Dutcher,  393;  Veazie  v.  Penobscot 
Railw.,  49  Me.  119.  The  same  principle  is  maintained  in  Brown  v.  Duplessis, 
1  1  La.  Ann.  842.  But  by  statute  in  this  state  the  cities  may  sell  the  use  of  the 
streets  i'..r  city  passenger  railway  purposes. 
[*312J 


§  76.  RIGHT   TO    OCCUPY   HIGHWAY   OR   STREET.  325 

sage  of  street  railways,  at  the  ordinary  grade  of  the  highway,  is 
not  an  appropriation  of  any  estate  in  the  land  to  public  use  beyond 
that  already  appropriated  by  devoting  the  land   to  the  use  of  a 
highway  or   street.20     And  there  is  an  elaborate  opinion  of  Mr. 
Justice  Ellsworth,  of  the    Connecticut   Supreme    Court,21   where 
the  same  views  are  maintained,  and,  as  it  seems  to  us,  with  more 
plausibility  than  any  case  we  have  found  in  the  opposite  direction. 
8.  The  explanation  of  the  singular  vacillation  of  the  courts  upon 
the  subject  of  railways  being  located  on  the  highways,  and  whether 
the  owner  of  the  fee  was  thereby  entitled  to  additional  compensa- 
tion, seems  to  arise  in  the  following  manner.     At  the  first  it  was 
so  common  to  designate  steam  railways  as  only  an  improved  high- 
way that  the  courts,  almost  universally  in  this  country,  held  the 
owner  of  the  fee  entitled  to  no  additional  compensation  by  reason 
of  such  railways  being  laid  upon  the  highway,  either  across  or 
along  their  route.     But  this  view,  upon  more  careful  consideration, 
being  found  untenable,  the  retrocession  of  the  courts  from  their 
former  false  assumption  naturally  gave  them  an  unnatural  impulse 
in  the  opposite  direction,  by  which  the  conclusion  was  arrived  at, 
that  all  railways  must  equally  be  an  additional  burden  upon  the 
fee.     Whether  the  proper  distinction  between  street  railways  and 
those  occupying  a  distinct  route  and  transacting  mainly  a  distinct 
business  will  ever  be  clearly  defined  is  perhaps  questionable. 

9.  It  seems  very  certain  that  the  grant  to  a  railway  company  of 
the  right  to  pass  along  the  streets  of  a  city  or  town  can  confer  no 
right  to  erect  stations  and  other  permanent  structures  in  the  streets 
and  thereby  render  them  unfit  for  use  as  streets.22  In  such  cases 
the  adjoining  land-owners  will  be  entitled  to  redress  by  way  of 
damages,  whether  they  own  to  the  middle  line  of  the  street  or  only 
to  the  margin.22 

10.  But  the  owner  of  an  unimproved  building  lot  upon  a  street 
cannot  be  regarded  as  suffering  any  such  injury  from  the  location 
of  a  railway  along  the  public  street  adjoining  as  will  entitle  him  to 
an  injunction.23  And  the  fact  that  the  defendant  owned  the  *  land 
across  which  a  railway  track  is  laid,  and  had  never  released  the 
right  of  way  to  the  railway,  is  no  ground  of  defence  for  placing  ob- 

20  New  Albany  Railw.  Co.  v.  O'Daily,  12  Ind.  551. 

21  Elliott  v.  Fairhaven  &  Westville  Railw.  Co.,  32  Conn.  579. 

22  Lackland  v.  North  Missouri  Railw.  Co.,  31  Mo.  180. 

23  Zabriskie  v.  Jersey  City  &  Bergen  Railw.  Co.,  2  Beasley,  314. 

[*313] 


826  EMINENT   DOMAIN.  PART  III. 

Btructions  upon  the  track.24  Nor  will  the  breach  of  contract  by 
which  the  company  secured  the  right  of  way  give  any  color  of 
justification  to  the  land-owner  for  placing  any  such  obstructions  on 

the  track.2* 

1 1.  Some  recent  cases  affecting  the  location  of  street  railways  in 
tli,'  city  of  New  York  may  be  of  interest  to  the  profession,  and  we 
haw  therefore  inserted  in  the  note  below25  the  leading  points 
decided. 

State  V.  Ilessenkamp,  17  Iowa,  25. 

Sixth  Av.  Railw.  Co.  v.  Kerr,  45  Barb.  138,  where  the  following  points 
are  ruled :  — 

Where  a  railroad  is  laid  in  a  public  street,  under  a  permissive  grant  to  the 
company  to  use  a  portion  of  the  street  for  that  purpose,  the  company  does  not 
acquire  the  same  unqualified  title  and  right  of  disposition  to  the  land  occupied 
which  individuals  have  in  their  lands. 

Tlic  only  exclusive  power  conferred  by  such  grants  is  that  of  using  railway 
carriages  in  the  same  manner  as  the  grant  of  a  stage  line  confers,  for  the  time 
being,  the  grant  of  a  monopoly  of  using  such  stages  for  the  transportation  of 
passengers  for  hire  on  that  route.     lb. 

After  a  railway  company  has  obtained  permission  from  the  common  council 
of  New  York  to  lay  a  railway  through  certain  streets  of  the  city,  and  such  grant 
is  subsequently  confirmed  by  an  act  of  the  legislature,  the  legislature  has  the 
power  to  grant  similar  privileges  to  another  company,  and  to  authorize  the  latter 
to  run  upon,  intersect,  or  use  any  portion  of  the  tracks  already  laid,  on  condi- 
tion of  making  compensation  or  payment  to  the  first  grantees,  to  be  assessed,  if 
the  parties  do  not  agree.     lb. 

Such  a  grant  is  not  a  violation  of  any  right  of  property.  The  grantees  must 
be  considered  as  holding  the  grants  for  the  public  use,  in  the  public  street,  which 
is  open  to  all  the  public. 

The  right  to  grant  a  crossing  of  the  road  necessarily  involves  a  right  to  pass 
over  a  Larger  portion  of  such  road,  when  the  legislature  so  directs.     lb. 

A  railway  corporation,  by  acquiring  the  right  to  construct  its  road  across  a 
highway,  and  obtaining  title  to  the  land  for  its  road-bed,  does  not  destroy  or 
impair  the  public  easement.  The  perfect  and  unqualified  right  of  every  citizen 
to  pass  over  the  road  at  that  point  remains  the  same  as  before.     lb. 

The  common  council  of  the  city  of  New  York  has  no  power  to  authorize  an 
snsion  of  a  city  railway,  unless  possibly  where  such  extension  is  really  neces- 
sary to  the  enjoyment  of  a  previous  valid  grant.     People  v.  Third  Av.  Railw., 
1-.  B  irbour,  63. 

It  il  be  claimed  that  such  extension  is  a  necessary  incident  to  the  principal 
subject  of  the  grant,  that  is  a  question  of  fact,  and  the  burden  of  proving  it  rests 
OS  the  railway  company.      lb. 

By  the  act    incorporating  the   New  Y"ork    &  Harlem  Railw.,  passed  April 
*  25,  1882,  the  company  was  empowered  to  construct  a  single  or  double  rail- 
way  from  any    point   on  the  north  bounds  of  23d  Street,   in  the  city  of  New 
S    :  k.  to  any  point  on  the  Harlem  River  between  the  east  bounds  of  the  Third 
[*314] 


§76.  RIGHT   TO    OCCUPY    HIGHWAY   OR   STREET.  327 

Avenue  and  the  west  bounds  of  the  Eighth  Avenue,  with  a  branch  to  the  Hud- 
son River,  between  124th  Street  and  the  north  bounds  of  129th  Street.  Held, 
1.  That  the  practical  location  of  the  railway  within  the  proscribed  limits  would 
exhaust  the  powers  conferred,  and  prevent  a  subsequent  change  of  location, 
except  by  consent  of  the  legislature.  2.  That  the  location  of  the  tracks  (if  there 
were  two)  would  have  to  be  substantially  upon  the  same  route.  That  the  permis- 
sion to  build  a  double  track  should  be  construed  to  mean  two  tracks  essentially 
upon  the  same  location,  for  the  purpose  of  enabling  cars  to  run  in  opposite  direc- 
tions, and  not  two  essentially  different  routes  through  different  streets  and  ave- 
nues, such  as  would  be  occupied  by  parallel  railways ;  especially  as  the  right  of 
granting  to  other  persons  or  corporations  authority  to  construot  parallel  railways 
on  streets  or  avenues  not  occupied  by  the  New  York  and  Harlem  Railw.,  was 
expressly  reserved  to  the  legislature  by  the  sixteenth  section  of  the  same  act. 
People  v.  N.  Y.  &  Harlem  Railw.,  45  Barbour,  73. 

By  an  amendatory  act  of  the  6th  of  April,  1832,  the  company  was  "  author- 
ized and  empowered,  with  the  permission  of  the  mayor,  &c,  of  New  York,  to 
extend  their  railway  along  the  Fourth  Avenue  to  14th  Street,  and  through  such 
other  streets  as  the  mayor,  &c,  might  from  time  to  time  permit,  subject  to  such 
prudential  rules"  as  were  prescribed  by  the  act,  and  as  the  said  mayor,  &c,  in 
common  council  convened,  might  prescribe.  Held,  that  the  precise  route  of  the 
extension  was  not  intended  to  be  defined  by  the  act,  but  this  was  designedly 
left  to  the  sound  discretion  of  the  common  council ;  and  the  road  was  to  be 
extended  through  such  other  streets  as  the  mayor,  &c,  might  from  time  to  time 
permit.     lb. 

That  this  was  a  continuous  power,  left  to  be  exercised  from  time  to  time  as  the 
wants  of  the  community  should  require.  It  was  not,  therefore,  a  power  which 
was  spent  by  a  single  grant  or  permission,  but  might  be  repeatedly  exercised, 
according  to  the  exigency  of  the  case.     lb. 

Held,  also,  that  the  extension  authorized  by  the  act  of  April  6,  1832,  was  a 
longitudinal  and  not  a  lateral  one ;  and  it  was  not  meant  that  it  should  pursue 
the  same  precise  direction  with  that  portion  of  the  road  to  which  it  was  attached, 
and  not  in  any  degree  diverging  from  such  a  course,  but  that  it  should  have  the 
same  general  direction  as  a  southern,  southeastern,  or  southwestern  direction, 
and  not  a  direction  to  opposite  or  widely  divergent  points  of  the  compass.     lb. 

Held,  further,  that  a  reasonable  interpretation  of  the  act  required  that  the 
extension  should  be  made  from  the  termination  of  the  road  already  constructed, 
so  as  to  be  a  legitimate  continuation  and  prolongation  thereof.  That  it  was  to 
go  further,  not  to  return  back.  It  was  to  be  continued,  not  to  branch  off.  It 
was  to  be  a  single  route,  not  several  routes.  It  was  to  be  an  extension,  and  not 
a  branch.     lb. 

Accordingly,  the  common  council  of  New  York  having  professedly,  in  pursu- 
ance of  the  authority  given  by  the  act  of  April,  1832,  passed  an  ordinance  on 
the  21st  of  April,  18G3,  granting  permission  to  the  New  York  &  Harlem  Railw. 
to  extend  its  railway,  and  construct  a  double  track  from  their  present  Fourth 
*  Avenue  track,  between  17th  and  18th  Streets,  through  Broadway  to  the  foot  of 
Whitehall  Street,  with  an  additional  track  around  Bowling-Green  and  State 
Street,  and  another  additional  single  track  around  Union  Square;  with  further 
permission  to  construct  an  additional  single  track  to  the  Fulton  Ferry,  through 

[*315] 


328 


EMINENT   DOMAIN. 


PART  III. 


John  Street,  &C.,  returning  through  Fulton  Street;  and  to  extend  its  railway 
ami  construct  a  double  track  in  Fourth  Avenue,  through  23d  Street  to  Madison 
Avenue,  and  thence  through  Madison  Avenue  as  far  as  it  is  or  hereafter  may  lie 
opened;  with  further  permission  to  connect  therewith  by  a  single  or  double 
track  from  Fourth  Avenue  to  Madison  Avenue,  through  24th  Street.  Held,  that 
the  permission  attempted  to  be  granted  by  the  ordinance  was  not  warranted  by 
(be  terms,  intent,  or  fair  interpretation  of  the  act  of  (ith  April,  1832.     lb. 

Held,  also,  that  the  permission  granted  by  the  common  council  to  the  railway 
company  was  not  maintainable  as  a  lawful  exercise  of  power  granted  to  the  com- 
mon council  under  the  ancient  Dongan  and  Montgomery  charters,  independent 
of  any  statutory  grant  or  authority.     lb. 

And  in  a  case  in  Pennsylvania  Commonwealth  v.  Central  Passenger  Railw., 
in.  St.  506,  where  a  proviso  in  the  defendants1  act  of  incorporation  pro- 
hibited the  company  from  using  any  railway,  turnpike,  or  artificial  road,  with- 
out first  obtaining  the  consent  of  the  owners,  it  was  held  it  could  not  use  the 
paved  Btreets  of  the  city  of  Philadelphia  without  first  obtaining  the  consent  of  the 
municipal  authority. 

NATURE   AND   EXTENT    OF    STREET   RAILWAY   FRANCHISES. 

We  have  thought  it  proper  to  here  insert  the  substance  of  our  views  on  some 
of  the  questions  just  discussed,  as  contained  in  a  report  to  the  legislature  of 
Massachusetts,  upon  the  rights,  duties,  and  interests  of  street  railways  in  the 
Commonwealth,  in  January,  1865. 


THE    PROPERTY    RIGHTS    OF    THE    COMPANY    CONSIDERED. 


1      /      interest  demands  reasonable  protection. 
'1.    The  legislature  have  power  to  impose  a  per- 
manent burden  upon  streets. 
1 ,   ■  this  is  not  to  be  assumed  as  matter  of 
construction. 
4.  Devi  [form.    Generally  held  that 

•  ill  franchise  exists  in  the  ease- 
iiii  ntfor  the  highway.    Analogy  of  steam 

I  railways  do  not  increase  the  servitude 
of  the  highway. 

B    M  •'  always  be  regarded,  and  treated,  as  a 

m  "filn  highway. 
1     I  tie  or  franchise  of  street  railways, 

■ner  traffic. 
rther  illustrated. 


10.  How  far  the  legislature  may  affect  the  ex- 

clusiveness  of  this  franchise. 

11.  Where    compensation     is    required,    no 

abridgment  of  right  implied. 

12.  The  franchise  and  property  must  remain 

subject    to   legislative   and   municipal 
control. 

13.  Some  states  allow  additional  land-dam- 

ages for  change  of  grade  of  the  street. 

14.  This  is  not  demandable,  unless  the  change 

is  required  for  something  in  addition  to 
highway,  or   unless  given   by   special 
statute. 
15-19.  Summary  of  the  argument  under  this 
head. 


1.  Wo  shall  now  state,  as  briefly  as  practicable,  and  make  it  intelligible,  the 
true  nature-  of  the  property  of  the  companies  in  their  locations,  as  we  understand 
it,  and  uh.it  further  legislation,  if  any,  is  demanded  on  their  behalf.  During 
ing  it  was  a  good  deal  pressed  upon  our  consideration,  that  some  further 
provision  of  law  was  demanded,  in  order  to  render  so  large  an  amount  of  capital, 
*  a-  tint  already  invested  in  street  railways,  as  secure  as  possible,  its  present  inse- 
curity tending  very  unjustly  and  unnecessarily  to  depreciate  its  value  in  the 

[♦316] 


§  76.  RIGHT   TO    OCCUPY   HIGHWAY   OR   STREET.  329 

market.  There  is  great  reason  and  justice  in  this  claim,  provided  it  can  be  done 
■without  too  great  infringement  of  other  interests,  or  too  great  departure  from 
the  established  policy  of  the  law,  in  regard  to  such  other  interests. 

2.  We  make  no  question  of  the  right  of  the  supreme  legislative  power  of  the 
Commonwealth  to  impose  a  permanent  burden  upon  the  streets  and  highways, 
throughout  its  limits,  in  favor  of  street  railway  companies. 

3.  But  such  a  step  is  so  much  at  variance  with  the  general  policy  of  states  in 
this  country,  and  everywhere,  so  far  as  we  know,  that  it  cannot  be  assumed,  as 
matter  of  construction,  upon  any  general  and  doubtful  provisions  of  legislation. 
And  we  have  felt  it  to  be  our  duty  to  examine  carefully  into  the  legislation  and 
decisions  of  the  different  states,  in  order  to  determine,  if  we  could,  the  nature 
and  extent  of  the  franchise,  or  estate,  of  the  street  railway  companies,  conse- 
quent upon  the  grant  of  their  charters  and  the  location  of  their  tracks. 

4.  In  looking  into  these  decisions,  we  find  no  uniformity,  and  no  such  view  of 
the  principles  involved,  as  will  be  likely  to  result  in  the  attainment  of  uniformity 
of  decision,  at  least  for  many  years  to  come.  In  a  large  number  of  the  cases 
which  have  come  before  the  courts,  in  the  different  states,  it  seems  to  have  been 
assumed,  as  matter  of  course,  that  street  railways,  laid  in  the  public  streets  and 
highways,  become  a  part  of  the  public  easement  in  such  streets  and  highways, 
and  that  the  owners  of  the  fee  of  the  land  covered  by  such  railways,  or  the 
adjoining  proprietors,  have  no  claim  for  additional  damages.  And  the  same  rule 
has  been  extended  to  steam  railways,  laid  in  the  public  streets  and  highways,  in  a 
majority  of  the  states  where  the  question  has  been  decided.  This  we  cannot 
regard  as  a  sound  principle,  as  to  steam  railways.  For  although  they  may  be 
regarded,  in  a  certain  sense,  as  a  public  highway,  for  the  passing  and  repassing 
of  all  persons  who  choose  to  avail  themselves  of  the  privilege,  in  that  particular 
mode  of  travel,  it  is  very  obvious  that  they  are,  in  no  sense,  a  common  highway 
for  public  travel,  in  the  ordinary  sense,  or  the  ordinary  mode.  They  do  not 
admit  of  such  communication  along  their  line.  They  are  confined  to  a  single 
mode  of  communication,  which  is  exclusively  under  the  control  of  a  private 
company,  and  they  impose  a  servitude  upon  the  land,  for  the  exclusive  benefit 
of  this  private  company,  as  distinct,  and  as  clearly  an  additional  burden,  from 
the  easement  for  the  ordinary  highway,  as  a  canal,  or  any  other  public  work 
which  it  is  possible  to  conceive.  Hence,  in  the  state  of  New  York  the  Court 
of  Appeals  have  reversed  their  former  decisions,  and  now  follow  the  English 
courts,  and  hold  the  owner  of  the  fee,  covered  by  a  highway,  entitled  to  addi- 
tional compensation,  where  a  steam  railway  is  laid  either  across  or  along  its 
course.  Some  other  states  have  of  late  taken  the  same  view,  and  we  feel  con- 
fident that  so  reasonable*  a  doctrine  must  ultimately  prevail  throughout  the 
country.  It  may  be  proper  here  to  state,  what  will  occur  to  any  one,  that  while 
the  track  of  the  street  railway  is  not,  or  should  not  be,  an  impediment  to  the  use 
of  the  highway  for  ordinary  vehicles,  the  rail  of  the  steam  road  is  required  to  be 
so  constructed  as  to  prove  a  very  serious  impediment  to  ordinary  travel ;  and 
there  are  other  important  grounds  of  distinction  between  the  steam  railways,  as 
at  present  operated,  and  the  street  railways. 

*  5.  In  regard  to  street  railways,  therefore,  the  question  is  very  different,  as  to 
creating  an  additional  servitude  upon  the  land.  They  are  confined  to  the  public 
highways;  as  a  general  thing,  no  alteration  in  grade  is  required.     They  are  not 

[*317] 


330  EMINENT    DOMAIN.  PART  III. 

allowed  to  use  such  motive  power  as  will  seriously  annoy  other  travellers,  or  the 
adjoining  proprietors.  The  statutes,  whether  general  or  special,  under  which 
these  companies  have  gone  into  operation,  have  been  studiously  drawn,  with 
ial  view  to  make  this  new  mode  of  transportation  inherent  merely  in  the 
public  easement  of  the  highway.  This  has  been  done,  probably,  with  the  double 
purpose  of  escaping  the  payment  of  additional  land  damages,  and  at  the  same 
time  to  quiel  the  public  mind  as  to  any  apprehension  that  the  companies  might 
ultimately  sel  up  a  claim  for  vested  rights,  which  should  prove  to  be  beyond  the 
control  of  the  municipal  authorities,  or  even  of  the  legislature. 

6.  From  the  form  of  these  grants,  the  manner  of  the  construction  and  opera- 
tion of  tin   roads,  and  the  early  current  of  decisions  upon  the  subject,  no  doubt 

entertained  thai  they  would  always  be  regarded  and  treated  as  a  portion  of, 
and  inhering  only  in,  the  highway,  and  as  creating  no  estate  in  the  soil  beyond 
that  of  the  public  easement  for  the  highway. 

7.  This  being  assumed,  the  inquiry  becomes  nice,  and  somewhat  difficult,  as 
to  what  precise  estate  or  interest  is  vested  in  the  corporations.  It  is  certain,  we 
think,  that  the  grant  of  an  act  of  incorporation  to  a  company  for  the  purpose  of 
constructing  and  operating  a  railway  for  the  transportation  of  passengers,  although 
located  in  and  along  the  highway,  is  a  franchise,  and  one  of  an  exclusive  char- 
acter, to  some  extent.  The  extent  of  the  exclusiveness  of  a  grant  of  this 
character,  where  no  exclusive  words  are  contained  in  the  grant,  must  depend 
opon  the  reasonable  and  fair  implications,  to  be  gathered  from  the  nature  of  the 
business,  and  other  surrounding  circumstances.  And  in  a  case  of  this  kind, 
where  the  incorporation  is  exclusively  for  the  purpose  of  transporting  passen- 

atnl  taking  tolls,  we  think  it  must  be  regarded  as  a  fair  implication,  from 
the  very  nature  of  the  grant,  the  investment  requisite  to  carry  it  into  operation, 
and  the  necessity  of  avoiding  competition  in  order  to  produce  any  adequate 
return,  for  the  franchise  must  be  considered  as  being  exclusive  of  all  similar 
transportation  upon  the  same  route,  by  mere  private  enterprise.  It  would  be 
little  short  of. absurdity  to  suppose  that  it  could  have  entered  into  the  contem- 
plation of  the  legislature,  or  of  the  companies,  that  after  obtaining  their  location, 
and  after  having  erected  and  equipped  their  roads,  at  large  expense,  it  was  still 
competent  for  any  person,  natural  or  corporate,  at  his  own  mere  option,  to  con- 
struct cars  and  divide  the  business,  by  running  upon  the  same  track  laid  by  such 
company. 

8.  This  will  be  more  obvious  by  considering  the  nature  of  the  business.  It  is 
not  like  ordinary  mechanical  or  manufacturing  business,  which  any  one  may 
institute  at  pleasure.  A  grant  of  incorporation,  for  such  or  any  similar  business, 
implies  nothing  exclusive  in  the  conduct  of  the  business.  The  franchise,  in 
Buch  a  corporation,  does  not  extend  beyond  the  mere  fact  of  acting  in  a  corporate 
capacity,  or  being  a  corporation.  That  only  is  exclusive  in  the  grant  which  is 
of  a  prerogative  character,  and  requires  the  consent  of  the  sovereign  for  its  cre- 

«.  If  it  were  competent  for  any  one  to  lay  a  passenger  railway  in  the 
streets,  at  his  own  option,  or  if  any  one  could  obta:n  such  a  right  from  the 
municipal  *  authority,  or  from  any  source  except  the  legislature,  then  the  grant  of 
an  incorporation  for  carrying  on  the  business  would  not  naturally  be  construed  to 
xclude  others  from  carrying  on  the  same  business,  at  the  same  place.  And 
this  was  the  view  at  first  attempted  to  be  maintained,  as  to  street  railways,  i.  e., 
[*318] 


§  76.  EIGHT   TO    OCCUPY    HIGHWAY   OR   STREET.  831 

that  the  cities  and  towns  might  create  them,  by  special  grants,  to  individuals  or 
companies. 

9.  But  this  view  has  long  since  been  abandoned,  and  it  is  now  entirely  well 
settled  that  such  a  franchise  in  the  highways  can  only  be  created  by  legislative 
grant.  It  is  a  franchise  to  carry  passengers,  and  to  demand  tolls.  This  is  one 
of  the  prerogatives  of  sovereignty,  and  only  derivable  through  the  action  of  the 
legislature.  It  must,  therefore,  in  its  very  nature,  be  exclusive  of  all  interference 
from  any  quarter  subordinate  to  the  authority  from  which  it  was  derived.  There 
can  then,  we  think,  be  no  question  whatever,  that  the  franchise  of  these  street 
railway  companies  is  exclusive  of  all  competition,  or  interference  in  their  business, 
except  under  the  paramount  authority  of  the  legislature.  See  R.  &  D.  Br.  Itailw. 
v.  Del.  &  Rar.  Canal  Co.,  3  C.  E.  Green,  546. 

10.  It  was  indeed  made  a  question  before  us,  how  far  it  was  competent  for 
the  legislature  even,  after  granting  an  exclusive  franchise  of  this  character  to  one 
company,  to  virtually  repeal  it,  by  permitting  other  companies  to  come  upon  the 
same  track  and  do  a  competing  business.  This  is  one  of  those  things,  where  the 
legislative  power  of  a  state  may  sometimes  do  that  indirectly,  provided  they  act 
in  good  faith  (which  is  always  to  be  presumed),  which  they  could  not  do  directly. 
For  instance,  it  could  not  be  claimed  that  the  legislature,  after  creating  such  a 
franchise,  could,  by  a  direct  act  of  legislation,  either  repeal  the  charter,  or  take 
away  the  right  of  compensation  by  way  of  tolls  or  fare.  But  they  may,  neverthe- 
less, allow  other  persons,  either  natural  or  corporate,  to  do  a  similar  business  in 
the  same  streets ;  or  to  do  it,  upon  the  tracks  of  an  existing  company,  by  making 
compensation  to  the  other  company,  whenever  in  their  judgment  the  public  good 
requires  it.  In  the  one  case,  the  grant  being  wholly  independent,  is  understood 
to  be  made  because  the  amount  of  travel  is  supposed  to  require  two  such  modes 
of  conveyance ;  and,  in  the  other,  the  compensation  is  regarded  as  an  equivalent 
for  the  use. 

11.  But  where  the  legislature  do  not  create  a  distinct  company  to  do  similar 
business  along  the  same  routes,  it  is  fair  to  conclude  that  there  is  no  purpose  of 
abridging,  or  in  any  manner  qualifying,  the  rights  before  conceded  to  the  first 
company.  And  the  mere  permission  of  a  branch  road  to  come  upon  the  track  of 
an  existing  trunk  route,  where  the  object,  whether  for  the  transportation  of  its 
own  passengers,  or  to  take  up  and  set  down  other  passengers  along  the  line  of 
the  trunk  route,  is  not  specifically  defined,  is  not,  ordinarily,  to  be  so  construed, 
as  to  effect  an  essential  abridgment  of  the  rights  and  interests  of  the  trunk  line. 
All  reasonable  implications  should  be  made  in  the  opposite  direction,  both  upon 
the  ground  that  the  legislature  must  be  presumed  to  intend  to  act  with  entire 
justice  towards  the  company  first  chartered,  and  first  investing  capital  upon  the 
route,  and  also,  upon  the  ground  that  the  provision  for  compensation  clearly 
shows  that  there  was  no  purpose  of  abridging  the  rights  of  the  first  company,  by 
allowing  the  second  company  to  run  its  cars  over  the  track  of  the  former. 

12.  It  is  upon  this  ground  that  we  have  come  to  the  conclusion  already  stated 
*  in  regard  to  compensation  for  the  use  of  a  trunk  line  by  a  branch  company, 
when  it  diverts  a  portion  of  the  traffic.  But  we  cannot  regard  this  rule  of  com- 
pensation, or  the  presumptions  of  law  upon  which  it  is  based,  as  imposing  any 
restrictions' upon  the  power  of  the  legislature, *or  that  the  general  law  of  the 
Commonwealth  or  the  Constitution  of  the  United  States  restrains  the  legislature, 

[*319] 


EMINENT  DOMAIN.  PART  III. 

ird  to  permitting  subsequently  chartered  companies  to  come  upon  the  track 
of  other  and  older  companies.  From  the  very  fact  that  the  franchise  of  street 
railways  i-  made  to  exisl  only  in  the  public  easement  .of  the  highway,  there  arises 
I  presumption,  thai  the  use  of  such  tracks  was  intended  to  remain  for  ever 
subject  t"  the  control  of  the  legislature,  and  that  they  could  either  control  such 
use,  by  legislation,  or  make  it  subject  to  the  absolute  control  of  the  municipalities. 
It  does  not  seem  to  us  possible  for  the  companies  to  escape  this  state  of  uncer- 
tainty, so  long  as  their  franchise  is  vested  only  in  the  public  easement  of  the 
highway,  unless  they  can  induce  the  legislature  to  give  them  exclusive  and  inde- 
pendent rights  in  the  highway,  by  express  grant;  and  it  is  doubtful  whether  even 
this  would  bind  future  legislatures. 

18.  A  claim,  for  additional  compensation  to  the  abutters,  has  been  maintained 
against  such  companies,  in  some  states,  wherever  it  becomes  necessary  to  alter 

i  le  of  the  streets  in  laving  the  rails,  in  such  a  manner  as  to  cause  .special 
damage  to  such  adjoining  proprietors.  But  this,  we  think,  unless  allowed  by 
special  statute,  is  a  virtual  concession,  that  the  laving  a  street  railway  may,  in 
certain  contingencies,  prove  an  additional  servitude  upon  the  soil,  requiring 
compensation  beyond  that  of  the  easement  for  the  highway;  and  if  this  proposi- 
tion be  conceded,  it  will  be  impossible  to  escape  the  conclusion  that  the  street 
railway  is  something  distinct  from  the  public  easement  of  the  highway.  And  if 
it   be   not  a  part  of  the  same  thing,  and  identical  with  it,  then  the  owner  of  the 

f< I  the  land  in  which  such  easement  exists,  may  always  claim  damages  for  the 

location  of  a  street  railway.     But  this  is  not  the  view  of  the  rights  of  such  com- 
panies  which  has  generally  been  taken,  or  which  we  think  sound. 

14.  On  the  other  hand,  if  the  street  railway  is  only  a  part  of  the  highway, 
inherent  in  the  public  easement,  then  no  additional  compensation  to  the  land- 
owner is  due,  in  consequence  of  any  alteration  in  the  grade  of  the  street  or 
highway,  unless  granted  by  special  statute.  That  will  be  only  one  of  those 
legitimate  contingencies  which  were  fairly  within  the  range  of  the  purposes  for 
which  the  easement  of  the  highway  was  originally  taken,  and  which  should  have 
been  taken  into  account,  and  is  therefore  presumed  to  have  been  taken  into 
account,  in  estimating  compensation  to  the  land-owner  in  the  first  instance. 
For,  in  assessing  damages  for  a  highway,  there  must  be  taken  into  the  judgment, 
not  only  the  present  injury,  from  building  the  highway  in  the  first  instance,  but 
from  all  future  and  allowable  alterations  of  the  same.  And  this  will  embrace, 
not  only  the  accommodation  of  the  way  to  the  present  modes  of  ordinary  travel 
and  transportation,  but  to  all  such  modes  of  travel  and  transportation  as  may 

er  arise  in  the  ordinary  course  of  improvement,  without  extending  it 
beyond  the  contemplated  use  of  an  ordinary  highway.  And  if  the  street  railway 
comes  within  this  range,  the  fact  that  it  is  new,  or  that  in  some  instances  it  may 
require  to  be  accommodated  with  a  different  grade,  to  some  extent,  will  be  no 
ground  for  claiming  additional  compensation  to  the  owner  of  the  fee.  This  is 
ten  true  in  laying  a  plank  road  over  an  ordinary  highway,  but  we  are  not 
aware  that  any  additional  compensation  is  ever  required,   on   that  account,  in 

e  of  laying  a  plank  road  upon  an  existing  highway.     So,  too,  in  altering 

ide    oi    tie-    highway,    without   introducing   any  change  in  the   mode  of 
construction,   great    injury  may'occur  to   the    abutters,  and    one   not   contem- 
plated, precisely  in  that  form,  at  the  time  the  land  was  taken;  and  still  no 
[*320] 


§  76.  RIGHT   TO   OCCUPY   HIGHWAY   OR   STREET.  333 

additional  compensation  can  be  claimed,  or  allowed,  unless  by  statute,  since  it 
comes  within  the  range  of  the  purpose  for  which  the  land  was  originally  taken. 
Each  party  assumes  the  risk  of  any  change  in  the  use,  or  its  entire  abandonment 
as  a  highway.  In  the  one  case  no  additional  compensation  can  be  claimed, 
and,  in  the  other,  there  is  no  duty  of  refunding  what  has  been  already  paid  by 
way  of  damages. 

15.  We  must,  therefore,  to  sum  up  the  results  of  the  argument  upon  this 
point,  conclude,  that  the  street  railway  companies  in  the  Commonwealth,  by  the 
grant  of  their  charters,  acquired  a  franchise  of  a  prerogative  character,  not  liable 
to  be  intruded  upon,  after  the  location  and  construction  of  their  roads,  except 
by  authority  derived  from  the  legislature,  or  by  virtue  of  some  condition  annexed 
either  to  the  grant  or  the  location. 

16.  But  we  think,  so  long  as  the  grant  is  not  exclusive  in  terms,  it  must  be 
regarded  as  a  fair  implication,  from  the  fact  of  the  franchise  residing  only  in  the 
public  easement  of  the  highway,  that  the  legislative  authority  of  the  Common- 
wealth has  entire  control  of  the  use  of  such  erections  as  are  made  by  virtue  of 
the  first  grant;  and  that  it  may,  at  any  time,  define  such  use  by  the  public  gen- 
erally ;  and  by  natural  or  corporate  persons,  for  transporting  passengers  for 
hire,  by  making  compensation.  And  from  the  same  view  it  must  equally  result, 
that  i he  legislature  may  delegate  the  control  of  this  use  to  the  municipal  authorities. 

17.  And  consequently  Ave  have  not  been  able  to  devise  any  legal  mode  in 
which  the  property  rights  of  these  companies  can,  with  propriety,  so  long  as 
they  exist  only  in  the  public  franchise  of  the  highway,  be  made  more  secure. 
The  franchise  is  exclusive  of  all  interference  except  by  authority  derived  from 
the  legislature,  but  it  exists  where  its  continuance  is  only  at  the  will  of  others 
who  have  the  legitimate  control  of  the  highways. 

18.  If  it  is  taken  or  interfered  with,  by  the  authority  of  the  legislature,  for 
merely  public  uses,  such  as  the  greater  accommodation  of  public  travel,  then  no 
compensation  is  deinandable,  since  that  is  one  of  the  conditions  or  contingencies 
upon  which -the  grant  was  accepted.  But  so  far  as  this  franchise  is  taken,  or 
interfered  with,  for  the  advancement  of  private  ends  and  enterprises,  the  first 
grantee  is  entitled  to  full  compensation,  as  much  as  for  any  other  property. 

19.  This,  then,  although  an  exclusive  franchise,  so  far  as  the  carrying  of  pas- 
sengers and  taking  tolls  is  concerned,  is  a  mere  estate  at  will,  so  far  as  the  legis- 
lative power  is  concerned,  or  the  general  demands  of  the  public  interest  may 
require,  through  the  action  of  the  municipal  authorities. 

[*320] 


EMINENT   DOMAIN.  PART  III. 

♦SECTION    XV. 
(  inflicting  Bights  in  different  Companies. 


•<i//  company  subservient  to  another, 
take  of  the  other  land  enough 

Is  track. 


2.    Where  no  apparent  conflict  in  route,  first 
located  acquires  superior  right. 


^77.  1.  Where  the  defendants'  statutory  powers  were  subject 
to  those  conferred  upon  the  plaintiffs,  whose  charter  was  first 
granted,  providing  that  the  plaintiffs'  powers  shall  not  be  so  ex- 
1  as  to  prevent  the  defendants  from  compulsorily  taking  and 
land  sufficient  to  construct  their  branch  lines,  not  exceeding 
twenty-two  feet  in  width,  at  the  level  of  the  rails,  the  plaintiffs 
having  first  purchased,  with  the  consent  of  the  owner,  lands  which 
the  defendants  proposed  to  take,  beyond  the  twenty-two  feet,  for 
purposes  of  building  stations,  &c.,  it  was  held,  that  the  plaintiffs 
having  occupied  the  ground  first,  were  entitled  to  hold  so  much 
as  was  not  actually  necessary  for  the'  formation  of  defendants'  rail- 
way.1 

2.  Where  two  railway  companies  were  incorporated  to  complete 
independent  lines  across  the  state,  only  the  termini  of  either  being 
prescribed,  there  being  no  apparent  or  necessary  conflict  of  the 
routes,  it  was  held,  that  the  company  which  first  surveyed  and 
adopted  a  route,  and  filed  the  survey  in  the  proper  office,  were  en- 
titled to  hold  it,  without  reference  to  the  date  of  the  charters,  both 
being  granted  at  the  same  session  of  the  legislature.2 

1  Lancaster  &  Carlisle  Railw.  v.  The  Maryport  &  Carlisle  Railw.,  4  Railw. 
1  :  post,  §  105. 

-  Morris  &  Essex  Railw.  v.  Blair,  1  Stockton,  Ch.  635.  A  similar  decision, 
in  principle,  i.s  made  in  Gawthem  v.  Stockport,  Disley  &  W.  Railw.,  29  Law 
Rolls  Court,  March,  1857.  In  this  case  the  railway  first  chartered 
w;is  laid  out  and  partly  built,  but  had  been  lying  by  some  time,  and  the  Master 
ol  the  Rolls  held,  a  subsequent  railway  was  not  precluded  from  interfering  with 
the  contemplated  route  of  the  first  railway.  One  railway  may  be  laid  across  the 
line  of  another  company,  but  the  latter  will  be  entitled  to  damages,  although  the 
former  is  laid  upon  piles  over  tide-water.  Grand  J.  Railw.  &  Depot  Co.  v. 
County  Commissioners,  II  (hay,  553.  And  it  is  here  said,  where  two  railway 
companies  file  a  joint  location,  they  are  jointly  liable  for  damages  to  land-owners  ; 
and  a  location  may  refer  to  a  plan  so  as  to  make  that  part  of  the  location. 

[•821] 


§78. 


ERECTIONS   OVER   NAVIGABLE   WATERS. 


335 


^SECTION     XVI. 


Right  to  Build  over  Navigable  Waters. 


1.  Legislature  may  grant  the  right. 

2.  Riparian  proprietor  owns  only  to  the  water. 

3.  His  rights  in  the  water  subservient  to  pub- 

lic use. 

4.  Legislative  grant  paramount,  except  the 

national  rights. 

5.  State  interest  in  flats  where  tide  ebbs  and 

flows. 

6.  Rights  of  adjoining  oivners  in  Massachu- 

setts. 

7.  Railway  grant  to  place  of  shipping. 

8.  Principal  grant  carries  its  incidents. 


9.   Grant  of  a   harbor  includes   necessary 

erections. 
10,  11.  Large  rivers  held  navigable  in  this 
country. 

12.  Land  being  cut  off  from  wharves  is  "  in- 

juriously affected." 

13.  Paramount  rights  of  Congress  infringed 

creates  a   nuisance.     Party  specially 
injured  may  have  action. 

14.  Case  in  New  Hampshire. 

15.  Obstruction,  if  illegal,  per  se  a  nuisance. 

16.  Public  reservations  applied  to  use  of  rail- 

way. 


§  78.  1.  In  regard  to  navigable  streams,  it  seems  to  be  a  con- 
ceded point,  that  the  owner  of  land  adjoining  the  stream  has  no 
property  in  the  bed  of  the  stream,  and  hence  that  the  legislature 
in  England  may  give  permission  to  a  railway  company  to  so  con- 
struct their  road,  as  to  interfere  with  and  alter  the  bed  of  such  a 
stream,  to  the  damage  of  any  owner  of  adjoining  land,  in  regard  to 
fiowage,  or  otherwise,  even  to  the  hindrance  of  accustomed  navi- 
gation, without  compensation ;  and  that  the  railway  company,  in 
constructing  their  road  within  the  provisions  of  the  act,  do  not 
become  liable  to  an  action  for  damages,  to  any  such  proprietor  of 
adjoining  land.1 

1  Abraham  v.  Great  Northern  Railw.,  16  Q.  B.  586 ;  s.  c.  5  Eng.  L.  &  Eq. 
258.  "  The  legislature  might  authorize  defendants  to  construct  a  causeway  or 
bridge  across  navigable  or  tide-waters,  although  the  navigation  might  be  thereby- 
impaired."  And  in  a  case  in  the  Queen's  Bench  (Jan.  1858),  Regina  v.  Musson, 
8  El.  &  Bl.  900;  s.  c.  30  Law  Times,  272,  it  is  held  that  a  pier,  built  into 
the  sea,  is  not  liable  to  the  parish  rates,  except  so  far  as  it  is  above  high- 
water  mark.  Lord  Campbell,  C.  J.  said,  "  As  to  the  part  between  high  and  low 
water  mark,  it  is  quite  clear  that  the  soil  between  high  and  low  water  mark  is  in 
the  Crown,  and  prima  facie  extra  parochial.  If  so,  the  onus  lies  on  the  parish 
of  showing  it  is  within  the  limits  of  the  parish.  That  may  be  done  by  evidence 
of  perambulating  it,  in  the  parish  bounds,  or  of  reputation."  See  Parker  v. 
Cutler  Milhlain  Co.,  20  Maine,  353  ;  opinion  of  court  in  Brown  v.  Chadbourne, 
31  Maine,  9;  Shepley,  C.  J.,  Rogers  v.  The  Kennebec  &  Portland  Railw.,  35 
Maine,  319.     So,  too,  to  construct  their  road  across  the  basins  of  a  water  com- 

[*322] 


33G  EMINENT    DOMAIN.  PART  III. 

The  same  point  has  been  often  decided  in  this  country.2 
Whether  waters  are  navigable  or  not,  is  determined  by  the  ebb  and 
flow  of  the  tide.  And  although  streams,  above  that  point,  are 
navigable  often,  for  steamboats  and  lesser  water  craft,  and  are  pub- 
lic highways  for  such  purposes,  and  often  become  highways  by 
prescription,  for  purposes  of  inferior  navigation,  as  floating  timber 
and  wood,  and  possibly  they  may  be  regarded  as  such  even  inde- 
pendent of  such  prescription;  yet  the  ownership  of  the  riparian 
proprietor  to  the  middle  of  the  stream,  ad  medium  filum  aqute,  is 
not  excluded,  except  in  tide-waters,3  and  such  large  rivers,  in  this 
country,  as  by  authority  of  Congress  or  common  consent  have  ac- 
quired or  assumed  the  character  of  navigable  waters,  although  not 
coming  strictly  within  the  common-law  definition.4 

panv,  to  their  injury,  upon  making  compensation.  Boston  Water  Power  Co.  v. 
Boston  &  Worcester  Railw.,  23  Pick.  360;  s.  c.  1  Am.  Railw.  C.  298.  The 
grant  of  power  to  construct  a  railway  between  two  points,  carries  authority  to 
cross  navigable  waters,  if  that  is  reasonably  necessary,  in  the  construction  of  the 
works.  Fall  River  Iron  Works  v.  Old  Colony  &  Fall  River  Railw.,  5  Allen,  221. 
ild  r.  Hudson  River  Railw.,  6  N.  Y.  522;  post,  §  206. 

3  1  Hargrave's  Law  Tracts,  by  Lord  Hale,  12,  13,  85;  Angell  on  Tide- 
Waters,  c.  VI.  pp.  171,  172,  173,  174. 

*  Champlain  &  St.  Lawrence  Railw.  v.  Valentine,  19  Barb.  484.  But  in  Bell 
r.  Gough,  •">  Zab.  624,  it  is  held,  that  if  the  riparian  owner  have  made  improve- 
ments  on  the  land  below  high  water,  so  as  to  have  reclaimed  it,  the  part  so  re- 
claimed belongs  to  him,  and  cannot  be  granted  by  the  state.  And  three  of  the 
judges,  in  the  trial  of  this  case,  in  the  Court  of  Appeals,  which  consisted  of  nine 
judges,  held  that  riparian  owners  have  a  vested  right  in  the  benefits  and  advan- 
tages arising  from  their  adjoining  the  water,  of  which  they  cannot  be  deprived 
without  compensation.  But  this  case,  although  exhibiting  great  research  and 
ability  and  considerable  learning,  is  not  altogether  in  accordance  with  the  gen- 
eral current  sf  the  decisions  upon  the  subject,  and  is  probably  based  upon  the 
custom  or  usage  which  has  prevailed  to  a  great  extent  in  some  sections  of  this 
country  from  its  first  settlement,  originally  founded  upon  Colonial  statutes  prob- 
ably, and  in  others,  perhaps,  growing  up  by  common  consent,  as  a  kind  of  local 
law.  In  a  later  ease,  before  the  same  court,  Pat.  &  New.  Railw.  v.  Stevens,  10 
Am.  Law  Keg.  (N.  S.)  165,  in  a  very  elaborate  and  learned  opinion  by  the 
<  Ihief  Justice,  Beasley,  it  was  decided,  in  conformity  to  the  general  law  upon  the 
subject,  that  the  state  is  the  absolute  owner  of  the  land  below  high-water  mark, 
under  all  navigable  water  within  its  territorial  limits,  and  such  land  can  be 
granted  to  any  purpose,  either  public  or  private,  without  making  compensation 
to  the  owner  of  the  shore.  But  a  grant  of  a  railway  along  the  shore  of  such 
water,  carries  no  implication  of  the  right  to  use  the  lands  of  the  state  below  the 
high-water  line.  Where  the  riparian  owner  on  the  Milwaukie  river  built  a 
wh  irf  in  front  of  his  land  projecting  into  the  stream,  it  was  held  the  city  of  Mil- 
waukie being  empowered  by  statute  to  establish,  along  the  shore  of  the  river, 

[*323] 


§  78.  ERECTIONS   OVER   NAVIGABLE   WATERS.  337 

3.  But  in  tide-waters,  and  navigable  lakes,  the  rights  of  the 
owner  of  land  adjoining  such  waters,  are  subservient  to  the  public 
rights,  and  are  consequently  subject  to  legislative  control,  and  any 
loss  the  owner  of  such  land  may  thereby  sustain  is  damnum  absque 
injuria.* 

4.  It  seems  to  be  considered,  that  the  state  legislatures  have 
unlimited  power  to  erect  bridges  and  railways,  and  make  any  other 
public  works  across  navigable  waters,  subject  only  to  the  para- 
mount authority  of  the  national  government.5 

dock  and  wharf  lines,  and  to  prevent  encroachments  upon  such  line,  could  not 
declare  the  plaintiff's  wharf  a  nuisance  on  the  ground  of  its  encroaching  upon  the 
line  established  by  the  city ;  that  whether  the  riparian  owner's  title  extended 
beyond  the  dry  land  or  not,  he  had  a  right  to  build  a  wharf  for  his  own  and  the 
public  use,  subject  to  such  regulations  as  the  legislature  might  establish,  and  that 
if  the  city  deemed  its  removal  necessary  for  the  public  good  they  should  make 
compensation  to  the  owner.     Yates  v.  Milwaukie,  10  Wall.  497. 

5  The  People  v.  Rensselaer  &  Saratoga  Railw.,  15  Wend.  113 ;  Bailey  v.  Phil. 
&  Wil.  Railw.,  4  Harring.  389;  People  v.  City  of  St.  Louis,  5  Oilman,  351; 
Spooner  v.  McConnell,  1  McLean,  C.  C.  337  ;  State  of  Pennsylvania  v.  Wheel- 
ing Bridge  Company,  13  How.  (U.  S.)  518  ;  Wilson  v.  The  Blackbird  Creek  Marsh 
Co.,  2  Pet.  (U.  S.)  245  ;  Hogg  v.  The  Zanesville  Canal  Co.,  5  Ham.  410  ;  United 
States  v.  The  N.  Bedford  Bridge  Co.,  1  W.  &  M.  401 ;  Atty.-Gen.  v.  Hudson 
River  Railw.,  1  Stockton,  Ch.  526  ;  Getty  v.  Same,  21  Barb.  617. 

In  the  case  of  Smith  v.  Maryland,  18  How.  (U.  S.)  71,  it  is  held  that  the  soil, 
in  the  shores  of  Chesapeake  Bay,  in  the  State  of  Maryland,  below  low-water 
mark,  belongs  to  the  state,  subject  to  any  prior  lawful  grants  by  the  state,  or  the 
sovereign  power,  before  the  Declaration  of  Independence.  But  that  this  right 
of  soil  in  the  state  is  a  trust,  for  the  enjoyment  by  the  citizens  of  certain  public 
rights,  among  which  is  the  common  right  of  fishery ;  that  the  state  may  lawfully 
regulate  the  exercise  of  this  right,  and  declare  vessels  forfeit,  for  violations  of 
regulations  so  established  ;  and  that  the  exercise  of  such  powers  by  the  state  is  no 
infringement  of  the  paramount  authority  of  Congress,  or  of  the  exclusive  admi- 
ralty and  maritime  jurisdiction  of  the  United  States  courts. 

In  the  case  of  Milnor  v.  The  Railway  Companies,  and  Others  v.  The  Plank- 
Road  Companies,  in  New  Jersey,  before  the  Circuit  Court  of  the  United  States, 
where  it  was  sought  to  restrain  the  companies  from  bridging  the  Passaic  River, 
below  Newark,  which  had  been  erected  into  a  port  of  entry  by  Congress,  and 
had  some  foreign  commerce,  and  some  internal  navigation,  the  following  points 
were  ruled  by  Mr.  Justice  Qrier,  6  Am,  Law  Reg.  6  :  "A  court  of  the  United 
States  has  no  jurisdiction  to  restrain,  by  injunction,  the  erection  of  a  bridge  over 
a  navigable  river  lying  wholly  within  the  limits  of  a  particular  state,  where  such 
erection  is  authorized  by  the  legislature  of  the  state,  though  a  port  of  entry  has 
bem  created  by  Congress  above  the  bridge.  Dicta,  in  Devoe  v.  Penrose  Ferry 
Bridge  Co.,  3  Am.  Law  Reg.  83,  overruled;  and,  in  Pennsylvania  v.  Wheeling 
Bridge  Co.,  13  How.  (U.  S.)  579,  explained.  The  point  overruled  by  the  learned 
vol.  i.  22  [*323] 


338  EMINENT    DOMAIN.  PART  III. 

The  Commonwealth  of  Massachusetts  has  no  interest  in 
Ihts  where  the  tide  ebbs  and  flows,  which  it  is  necessary  to  have 

judge  is  thus  stated  by  him  :  "  That  although  the  courts  of  the  United  States  cannot 
Danish,  by  indictment,  the  erection  of  a  nuisance  on  our  public  rivers,  erected  by 
authority  ol  a  state,  yet  that  as  courts  of  chancery  they  may  interfere  at  the 

mce  of  an  individual  or  corporation  who  are  likely  to  suffer  some  special 
injury,  and  prohibit,  by  injunction,  the  erection  of  nuisances  to  the  navigation  of 
the  great  navigable  rivers  leading  to  the  ports  of  entry  within  a  state."  3  Am. 
Law  Reg.  p.  83.  The  following  extract  from  the  opinion  gives  the  point  of  the 
decision  :  "  The  Passaic  River,  though  navigable  for  a  few  miles  within  the  State 
New  Jersey,  and  therefore  a  public  river,  belongs  wholly  to  that  state;  it  is 
no  highway  to  other  states,  no  commerce  passes  thereon  from  states  below  the 
bridge  to  states  above.  Being  the  property  of  the  state,  and  no  other  state 
having  any  title  to  interfere  with  her  absolute  dominion,  she  alone  can  regulate 
the  harbors,  wharves,  ferries,  or  bridges,  in  or  over  it.  Congress  has  the  ex- 
clusive power  to  regulate  commerce,  but  that  has  never  been  construed  to  include 
the  means  by  which  commerce  is  carried  on  within  a  state.  Canals,  turnpikes, 
bridges,  and  railways  are  as  necessary  to  the  commerce  between  and  through  the 

pal  states,  as  rivers.  Yet  Congress  has  never  pretended  to  regulate  them. 
When  a  city  is  made  a  port  of  entry,  Congress  does  not  thereby  assume  to  regu- 
late its  harbor,  or  detract  from  the  sovereign  rights  before  exercised  by  each 
state  over  her  own  public  rivers.  Congress  may  establish  post-offices  and  post- 
roads  ;  but  this  does  not  affect  or  control  the  absolute  power  of  the  state  over 
its  highways  and  bridges.  If  a  state  does  not  desire  the  accommodation  of  mails 
at  certain  places,  and  will  not  make  roads  and  bridges  on  which  to  transport 
them,  (Cngress  cannot  compel  it  to  do  so,  or  require  it  to  receive  favors  by 
compulsion.  Constituting  a  town  or  city  a  port  of  entry,  is  an  act  for  the  con- 
venience and  benefit  of  such  place,  and  its  commerce;  but  for  the  sake  of  this 
benefit  the  constitution  does  not  require  the  state  to  surrender  her  control  over 
the  harbor,  or  the  highways  leading  to  it,  either  by  land  or  water,  provided  all 
citizens  of  the  United  States  enjoy  the  same  privileges  which  are  enjoyed  by  her 
own. 

••  Whether  a  bridge  over  the  Passaic  will  injuriously  affect  the  harbor  of  New- 
ark, is  a  question  which  the  people  of  New  Jersey  can  best  determine,  and  have 
a  rijilit  to  determine   for  themselves.     If  the  bridges    be  an  inconvenience  to 

pa  and  schooners  navigating  their  port,  it  is  no  more  so  to  others  than 
to  them.,  1  see  no  reason  why  the  State  of  New  Jersey,  in  the  exercise  of  her 
absolute  sovereignty  over  the  river,  may  not  stop  it  up  altogether,  and  establish 
the  harbor  and  wharves  of  Newark  at  the  mouth  of  the  river.'  It  would  affect 
the  rights  of  no  other  state.  It  would  still  be  a  port  of  entry,  if  Congress  chose 
90.  Such  action  would  not  be  in  conllict  with  any  power  vested 
in  Congress.  A  state  may,  in  the  exercise  of  its  reserved  powers,  incidentally 
affect  subjects  intrusted  to  Congress  without  any  necessary  collision.  All  rail- 
ways, -aiiab,  harbors,  or  bridges,  necessarily  affect  the  commerce  not  only 
within  a  state  but  between  the  states.     Congress,  by  conferring  the  privilege  of 

rl  of  entry  upon  a  town  or  city,  does  not  come  in  conflict  with  the  police 
power  of  a  state  exercised  in  bridging  her  own  rivers  below  such  port.     If  the 
[*324] 


§  78.  ERECTIONS   OVER  NAVIGABLE   WATERS.  339 

*  appraised,  under  the  statute,  when  such  land  is  taken,  as  appurte- 
nant to  the  upland,  for  the  purpose  of  building  a  railway.6     And 

power  to  make  a  town  a  port  of  entry  includes  the  right  to  regulate  the  means 
by  which  its  commerce  is  carried  on,  why  does  it  not  extend  to  its  turnpikes, 
railways,  and  canals,  to  land  as  well  as  water?  Assuming  the  right  (which  I 
neither  affirm  nor  deny)  of  Congress  to  regulate  bridges  over  navigable  rivers 
below  ports  of  entry,  yet,  not  having  done  so,  the  courts  cannot  assume  to  them- 
selves such  a  power.  There  is  no  act  of  Congress  or  rule  of  law  which  courts 
could  apply  to  such  a  case.  It  is  possible  that  courts  might  exercise  this  discre- 
tionary power  as  judiciously  as  a  legislative  body,  yet  the  praise  of  being  '  a  good 
judge  1  could  hardly  be  given  to  one  who  would  endeavor  to  '  enlarge  his  juris- 
diction '  by  the  assumption,  or  rather  usurpation,  of  such  an  undefined  and  dis- 
cretionary power. 

"  The  police  power  to  make  bridges  over  the  public  rivers  is  as  absolutely  and 


6  Walker  'v.  Boston  &  M.  Railw.,  3  Cush.  1;  s.  c.  1  Am.  Railw.  C.  462. 
Under  a  colonial  ordinance  o  1647,  of  Massachusetts,  the  flats  on  creeks,  coves, 
and  arms  of  the  sea,  where  the  tide  ebbs  and  flows,  to  the  extent  of  one  hundred 
rods,  are  appurtenant  to  the  upland,  and  the  owners  of  the  adjoining  land  have 
an  estate  in  fee  therein,  subject  to  the  right  of  the  Commonwealth,  for  making 
public  erections,  which  is  paramount,  and  subject  also  to  such  restraints  and 
limitations  of  the  proprietors1  use  of  them,  as  the  legislature  may  see  fit  to 
impose  for  the  preservation  and  protection  of  public  and  private  rights.  Com- 
monwealth v.  Alger,  7  Cush.  53.  And  a  similar  custom  or  usage  prevailed  to 
some  extent  in  some  of  the  other  American  colonies,  traces  of  which  will  be 
found  in  some  of  the  more  recent  decisions  in  those  states,  which  have  succeeded 
them.  The  question  of  the  right  of  riparian  owners  along  the  margin  of  the  sea, 
where  the  tide  ebbs  and  flows  upon  sea  flats,  in  the  State  of  Massachusetts,  is 
more  extensively  and  more  learnedly  discussed  in  Commonwealth  v.  Roxbury, 
9  Gray,  451,  and  the  reporter's  note,  by  the  present  Mr.  Justice  Gray  of  the 
Supreme  Judicial  Court,  than  in  any  other  place  within  our  knowledge.  The 
leading  propositions  decided  by  the  case,  are : 

1.  The  Commonwealth  is  the  owner  in  fee  of  all  channels,  lands,  and  flats 
below  low-water  mark,  and  more  than  one  hundred  rods  below  high-water  mark. 

2.  The  charter  of  the  colony  of  Massachusetts  conveyed  to  the  grantees  all 
public  and  private  rights  in  the  sea-shore  between  high  and  low  water  mark, 
without  express  words. 

3.  An  order  of  the  General  Court,  that  all  the  ground  lying  between  two  towns 
shall  belong  to  one  of  them,  conveys  no  right,  more  than  one  hundred  rods  below 
high-water  mark. 

4.  An  act  granting  permission  to  a  mill  corporation  to  exclude  the  tide-waters 
from  a  portion  of  the  flats,  and  use  it  as  a  basin  for  the  purposes  of  a  mill  power, 
does  not  release  the  title  of  the  Commonwealth  to  such  flats. 

5.  An  act  defining  the  boundary  between  two  towns,  and  recognizing  some 
deviations  from  the  original  or  natural  boundary,  and  some  exchanges  of  terri- 
tory, will  not  imply  any  relinquishment  of  title  on  the  part  of  the  Commonwealth. 

[*325J 


EMINENT    DOMAIN.  PART  III. 

■  the  owner  haa  the  right  to  raise  such  flats,  by  filling  up,  if  he  is 
compelled   to  do  more  filling  up  to  secure  free  access  to  other 

jted  in  a  state  as  the  commercial  power  is  in  Congress;  and  no 
in  arise  as  to  which  is  bound  to  give  way,  when  exercised  over  the 
Bubject-matter,  till  a  case  of  actual  collision  occurs.  This  is  all  that  was 
decided  in  the  ease  of  Wilson  v.  The  Blackbird  Creek,  &c. ,  2  Peters,  (U.S.)  245. 
Thai  case  has  been  the  subject  of  much  comment,  and  some  misconstruction.  It 
was  never  intended  as  a  retraction  or  modification  of  any  thing  decided  in  Gibbons 
,-.  Ogden,  or  to  deny  the  exclusive  power  of  Congress  to  regulate  commerce. 
Nor  does  the  Wheeling  Bridge  case  at  all  conflict  with  either.  The  case  of 
Wilson  v.  The  Blackbird  Creek,  &c,  governs  this,  while  it  has  nothing  in  com- 
mon with  tliat  of  the  Wheeling  Bridge." 

Ami  where  the  legislature  of  the  Colony  of  New  Jersey,  at  an  early  day  (1760), 
I  an  act  to  enable  the  owners  of  meadows  along  a  small  creek  emptying 
into  the  Delaware  River,  and  into  which  the  tide  ordinarily  flowed  for  about  two 
miles,  to  support  and  maintain  a  dam,  to  shut  out  the  tide  from  the  creek,  for 
the  purpose  of  draining  such  meadows;  and  enacted  that  said  bank,  dam,  and 
all  other  waterworks  already  erected,  or  which  should  thereafter  be  found  neces- 
sary to  be  erected,  for  the  more  effectual  preventing  the  tide  from  overflowing 
the  tnea  lows  lying  on  the  said  creek,  should  be  erected,  supported,  and  main- 
tained  at  the  equal  expense  of  all  the  owners  and  possessors  of  the  meadows, 
defining  the  limits  up  the  creek;  and  provided  the  manner  in  which  the  natural 
watercourse  of  the  creek  should  be  kept  clear,  and  for  the  election  yearly,  by 
all  the  land-owners,  of  two  managers,  empowered  to  assess  the  owners  or  occu- 
piers ui  such  meadows,  as  they  should  deem  necessary  for  repairing  and  main- 
taining the  dam  ;  and  the  act  had  been  accepted  by  the  owners  of  the  meadow, 
managers  elected,  and  the  dam  repaired,  under  the  provisions  of  the  act,  and  a 
large  amount  expended,  from  time  to  time,  after  the  passage  of  the  act;  and 
where  the  legislature  in  the  year  1854  passed  an  act,  declaring  this  creek  to  be 
a  public  highway  in  all  respects,  as  fully  as  it  was  before  the  erection  of  such 
dam,  and  empowering  the  municipal  authorities  to  remove  the  dam,  and  open 
the  navigation  :  It  was  held,  upon  a  bill  filed  in  equity  to  restrain  the  committee 
of  the  township  from  performing  this   duty,  so   imposed   upon  them:  That  the 

lature  had  the  right  to  make  the  grant,  there  being  nothing  to  show  that  the 
public  interest  demanded  the  navigation  of  the  creek;  That  it  does  not  follow, 
that  every  creek  or  rivulet,  into  which  the  tide  ebbs  and  flows,  is  to  be  regarded 
a>  navigable  water,  in  such  sense  as  to  be  beyond  the  control  of  the  legislature, 
t  as  a  public  highway;  and  the  legislature  is  the  sole  judge,  to  determine 
when  such  streams  shall  be  considered  navigable  rivers,  and  be  maintained  and 
protected  as  Buch  ;  that  the  act  of  1760  did  not  only  authorize  the  owners  of  the 
meadows  to  continue  the  dam,  but  it  gave  the  authority  of  the  state  to  compel 

mtinuance;  that  the  act  of  1854  was  in  violation  of  the  United  States  Con- 
■  inhibiting  the  several  states  from  passing  laws  impairing  the  obligation 

ntracts.     That  it  was  a  virtual  repeal  of  the  former  act,  under  which  rights  had 
become  vested,  and  valuable  property  acquired;  That  the  act  of  1854  was  also 

rnanl  to  the  constitution  of  the  state,  as  a  taking  of  private  property  for 
pubhe  use,  without  just  compensation;  a  partial  destruction  or  diminution  of  the 

[*326] 


§  78.  ERECTIONS   OVER   NAVIGABLE    WATERS.  341 

*  lands,  by  reason  of  the  construction  of  a  railway,  it  is  proper  to 
be  considered  by  the  jury  in  estimating  land  damages  to  such 
owner.7  But  the  owner  of  a  tide-mill  has  no  right  to  have  such 
riparian  flats,  as  lie  owns,  kept  open  and  unobstructed  for  the  free 
flow  of  tide-water  to  his  mill. 

6.  The  adjoining  owners  of  such  flats  in  Massachusetts  have  the 
right  to  build  solid  structures  to  a  certain  extent,  and  thus 
obstruct  the  ebb  and  flow  of  the  tide,  if  in  so  doing  they  do  not 
wholly  obstruct  the  access  of  other  proprietors  to  their  houses  and 
lands ;  and  if  the  mill-owner  and  other  proprietors  suffer  damage 
therefrom,  it  is  damnum  absque  injuria?     "  Therefore,"  say  the 

*  court  "  so  far  as  the  railroad  erected  by  the  legislature  affected 
the  right  of  the  claimants  to  pass  and  repass  to  and  from  their 
lands  and  wharves  with  vessels,  it  was  a  mere  regulation  of  a  pub- 
lic right,  and  not  a  taking  of  private  property  for  a  public  use,  and 
gave  no  claim  for  damages." 

7.  The  grant  of  a  railway  "  to  the  place  of  shipping  lumber  "  on 
a  tide-water  river,  justifies  an  extension  across  flats  and  over  tide- 
water to  a  point  at  which  lumber  can  be  conveniently  shipped.9 

8.  In  a  case  in  the  House  of  Lords,10  it  was  held,  that  where  a 
statute  authorizes  a  company  to  construct  certain  works,  as  a  har- 
bor, it  is  to  be  presumed  they  were  to  have  power  to  execute  all 
works  incidental  to  their  main  purpose,  and  which  they  deem  nec- 
essary, provided  they  act  bona  fide. 

9.  Accordingly,  when  public  trustees  for  improving  the  naviga- 
tion of  the  Clyde  were  authorized  by  statute  to  acquire  lands 
adjoining  the  river,  and  to  construct  a  quay,  or  harbor,  and  having 
acquired  part  of  A.'s  land,  proposed  to  erect  a  large  goods-shed 
fronting  the  river,  and  between  the  rest  of  A.'s  land  and  the  river, 

value  of  property,  being  to  that  extent,  a  taking.  Glover  v.  Powell,  2  Stock- 
ton's Ch.. 211. 

7  Commonwealth  v.  Boston  &  Maine  Railw.,  3  Cush.  25  ;  s.  c.  1  Am.  Railw. 
C.  482;  Fitchburg  Railw.  v.  Boston  &  Maine  Railw.,  3  Cush.  58;  s.  c.  1  Am. 
Railw.  C.  508. 

8  Davidson  v.  Boston  &  M.  Railw.,  3  Cush.  91;  s.  c.  1  Am.  Railw.  C.  534; 
s.  p.  Stevens  v.  Pat.  &  Newark  Railw.,  5  Vroom,  532. 

9  Peavy  v.  The  Calais  Railw.,  30  Maine,  498;  s.  c.  1  Am.  Railw.  C.  147. 
See  also  Babcock  v.  Western  Railw.,  9  Met.  553  ;  s.  c.  1  Redf.  Am.  Railw.  Cases, 
191.  So  the  grant  of  a  railway  between  certain  termini,  which  line  passes  over 
navigable  rivers,  authorizes  the  company  to  bridge  such  rivers.  Attorney-Gen. 
v.  Stevens,  Saxton,  Ch.  369. 

10  Wright  v.  Scott,  34  Eng.  L.  &  Eq.  1 ;  ante,  §  63. 

[*327, 328] 


EMINENT   DOMAIN.  PART  III. 

it  was  held,  thai  although  the  statute  gave  no  express  power  to 
arect  Bueds,  it  must  be  presumed  that  a  harbor,  equipped  with  all 
the  inosi  approved  appliances  for  trade,  was  intended  by  the 
iture,  and  that  therefore  a  power  to  erect  sheds  was  im- 
plied.10 

1".   An  interesting  case11  has  been  determined  by  the  *  Supreme 

Court  of   Iowa,  in    regard   to   the   important   question,  to  what 

extent   the  large  rivers  in  this  country,  as  the  Mississippi,  are  to 

garded  as  navigable  waters,  above  where  the  tide  ebbs  and 

flows. 

11.  It  is  there  held,  that  all  waters  are  to  be  regarded  as  navi- 
gable,  above  where  the  tide  ebbs  and  flows,  which  are  of  common 
use  to  all  the  citizens  of  the  republic  for  purposes  of  navigation,  or 
thai  navigability,  in  fact,  is  to  be  regarded  as  the  decisive  test, 
rather  than  the  ebb  and  flow  of  the  tide.  And  it  is  here  main- 
tained, that  the  acts  and  declarations  of  the  United  States  con- 
stitute the  Mississippi  a  public  highway,  and  that  consequently  the 
riparian  proprietors  have  no  interest  in  the  lands  below  high-water 
mark. 

12.  And  where  one,  upon  the  shore  of  a  navigable  stream  or 
arm  of  the  sea,  is  cut  off  by  a  railway  or  other  public  work  from 
all  communication  with  the  navigation,  to  the  injury  of  wharves 
or  other  erections  which  the  party  made  upon  his  land,  it  has  been 

11  McManus  v.  Carmichael,  5  Am.  Law  Reg.  593.  It  is  maintained  in  this  case, 
with  <:reat  labor  and  research,  that  a  large  number  of  the  states  have  adopted 
similar  views  in  regard  to  their  large  rivers.  See  also  Bowman  v.  Wathen,  2 
McL<  aii's  C.  C.  376,  where  the  learned  judge  of  that  circuit  thus  lays  down  the 
law,  in  regard  to  the  shores  of  the  Ohio  River:  "On  navigable  streams  the  ripa- 
rian right  we  suppose  cannot  extend  generally  beyond  high-water  mark.  For 
certain  purposes,  such  as  the  erection  of  wharves  and  other  structures  for  the 
convenience  of  commerce,  and  which  do  not  obstruct  the  navigation  of  the  river, 
it  ina\  be  exercised  beyond  this  limit.  But  in  the  present  case  this  inquiry  is 
not  important.  It  is  enough  to  know  that  the  riparian  right  on  the  Ohio  River 
extends  to  the  water,  and  that  no  supervening  right  over  any  part  of  this  space 
can  be  exercised  or  maintained  without  the  consent  of  the  proprietor.  He  has 
the  right  of  fishery,  of  ferry,  and  every  other  right  which  is  properly  appurte- 
nant to  the  Boil.  And  lie  holds  every  one  of  these  rights  by  as  sacred  a  tenure  as 
be  holds  the  land  from  which  they  emanate.  The  state  cannot,  either  directly 
or  indirectly,  divot  him  of  any  one  of  these  rights,  except  by  a  constitutional 
the  power  to  appropriate  private  property  for  public  purposes.  And 
any  acl  of  the  Btate,  short  of  such  an  appropriation,  which  attempts  to  transfer 
any  of  these  rights  to  another,  without  the  consent  of  the  proprietor,  is  inopera- 
al-o  Lehigh  Valley  Railw.  v.  Trone,  28  Penn.  St.  206. 

[*329] 


§78.  ERECTIONS   OVER   NAVIGABLE    WATERS.  343 

held  that  such  person  is  entitled  to  damages  under  the  statutes 
allowing  parties  compensation  where  their  estate  is  "  injuriously 
affected."  12 

13.  And  it  seems  to  be  regarded  as  settled,  that  where  the 
grant  of  any  authority,  by  the  state  legislature,  in  regard  to  naviga- 
ble waters,  in  its  exercise  works  an  interference  with  the  exclusive 
power  of  Congress  to  regulate  commerce,  whether  foreign  or  in- 
ternal, such  interference  being  unlawful  is  a  nuisance,  and  any 
private  person  suffering  special  damage  thereby  is  entitled  to  an 
action  at  law,  or  to  maintain  a  bill  in  equity  for  a  perpetual  injunc- 
tion.13 

*  14.  The  questions  are  very  numerous  which  have  arisen  in  re- 
gard to  the  conflicting  rights  of  different  grantees  affecting  fran- 
chises and  easements  of  different  kinds.  In  a  case  in  New  Hamp- 
shire,14 some  questions  affecting  the  construction  of  grants,  and 
reservations  of  this  kind,  are  very  extensively  discussed. 

15.  It  seems  to  be  well  settled,  both  in  England  and  in  this 
country,  that  if  there  is  no  legal  authority  for  the  erection  of  a 
pier  in  a  navigable  river,  such  erection  will  become  a  nuisance 
per  se,  and  that  no  evidence  can  be  received  to  show  that  although 

12  Bell  v.  Hull  &  Selby  Railw.,  6  M.  &  W.  699. 

13  State  of  Pennsylvania  v.  Wheeling  Bridge  Co.,  13  How.  (U.  S.)  518 ;  s.  c. 
18  id.  421.  The  same  principle  is  recognized  in  other  cases.  Works  v.  Junction 
Railway,  5  McLean  (C.  C),  425  ;  United  States  v.  Railroad  Bridge  Co.,  6  id.  517. 
When  the  case  of  Pennsylvania  v.  Wheeling  Bridge  Co.,  was  last  before  the  court, 
it  was  held,  that  the  paramount  authority  of  Congress,  in  the  regulation  of  com- 
merce, included  the  power  to  determine  what  was  an  obstruction  to  navigation. 
And  Congress  having  legalized  the  bridge  of  defendants,  after  the  judgment 
of  the  court  to  abate  it,  but  before  it  was  carried  into  effect,  it  was  held, 
that  the  occasion  for  executing  the  judgment  was  thereby  removed.  Mr.  Jus- 
tice Nelson,  p.  432,  thus  lays  down  the  law,  as  to  streams  under  state  control : 
"The  purely  internal  streams  of  a  state,  which  are  navigable,  belong  to  the 
riparian  owners  to  the  thread  of  the  stream,"  and  they  have  a  right  to  use  them, 
"  subject  to  the  public  right  of  navigation."  "  They  may  construct  wharves  or 
dams  or  canals,  for  the  purpose  of  subjecting  the  stream  to  the  various  uses  to 
which  it  may  be  applied,  subject  to  this  public  easement.  But  if  these  structures 
materially  interfere  with  the  public  right,  the  obstruction  may  be  removed  or 
abated  as  a  public  nuisance."  "  These  purely  internal  streams  of  a  state,  as  to 
the  public  right  of  navigation,  are  exclusively  under  the  control  of  the  state 
legislature."  And  although  erections  authorized  by  grant  from  the  state  legis- 
lature cause  "  real  impediment  to  the  navigation,"  they  are  nevertheless  lawful 
and  the  riparian  owner  has  no  redress.     See  also  Morgan  v.  King,  18  Bai-b.  277. 

14  Goodrich  v.  Eastern  Railw.  Co.,  37  N.  H.  149. 

[*330] 


: ,  I  }  EMINENT  DOMAIN.  PART  III. 

illegal    it    will  do  no  harm,  that   question    being    wholly   imma- 
terial 

1  •;.  Where  the  act  of  Congress,  laying  out  the  city  of  Burlington, 
[owa,  reserved  a  strip  of  land  along  the  bank  of  the  Mississippi  River, 
for  ever  used  for  a  highway  and  other  public  uses,  and,  after 
the  Bale  of  lots  abutting  upon  the  reservation,  Congress  released  its 
tit  I.'  to  the  city,  it  was  held  that  the  dedication  of  the  strip  of  land 
was  a  contract,  and  could  not  be  repealed,  or  revoked  ;  and  that  the 
title  of  the  city  was  subject  to  the  original  conditions  of  the  reser- 
vation: and  that  the  accretions  from  the  river  were  the  same  as 
the  rest  of  the  strip  ;  that  adjoining  land-owners  had  such  an 
interesl  that  they  could  restrain  the  city  from  applying  the  land 
to  private  uses  ;  but  that  it  might  be  applied  to  the  uses  of  a  rail- 
way, for  any  such  purposes  as  would  justify  the  exercise  of  the  right 
of  eminent  domain.16 


SECTION    XVII. 

O/'struction  of  Streams  by   Company's    Works. 


.  without  compensa- 

pany  liable  for  defective  construction. 
3.  So  also  if  they  use  defective  ivories,  built 

by  others. 
'.     '      ipany  liable  to  action,  where  mandamus 
<il  lie. 
pany  liable  for  defective  works,  done 
according  to  their  jilans. 


6.  When  a  railway  "  cuts  off"  wharves 
from  the  navigation. 

7.  Stream  must  be  restored  and  maintained. 

8.  Company  cannot  cast  surface  water  on 
adjoining  land  except  from  strict  neces- 
sity. 

9.  Public  company  exceeding  their  powers 
liable  to  an  action. 

10.  In  such  cases  courts  of  equity  will  relieve 
by  injunction. 

'.  1.  In  regard  to  the  obstruction  of  streams,  by  building 
railways,  the  better  opinion  seems  to  be,  that  the  company  are 
bound  to  do  as  little  damage  to  riparian  proprietors  as  is  reason- 
ably* consistent  with  the  enjoyment  of  their  grant.1  The  state 
cannot  grant  the  power  to  divert  a  stream  of  water  without  com- 
pensation.2 

15  The  People  v.  Vanderbilt,  38  Barb.  282. 

18  Cook  v.  Burlington,  30  Iowa,  94. 

1  Boughton  v.  ( larter,  18  Johns.  405;  Hooker  v.  N.  H.  &  Northampton  Co., 

1  1  Conn.  1  I*',. 

-  Gardner  v.  Xewburgh,  2  Johns.  Ch.  162.     But  where  a  railway  takes  the 
land  under  its  general  powers,  and  in  estimating  damages  calls  the  attention  of 
[*331] 


§  79.  ERECTIONS   OBSTRUCTING   STREAMS.  345 

2.  Thus  if  by  making  needless  obstructions  in  streams,  in  the 
erection  of  bridges,  or  by  imperfect  or  insufficient  sluices  or  ducts 
for  the  passage  of  streams,  intersected  by  a  railway,  the  land  or 
adjoining  property  is  injured,  the  company  are  liable.3 

3.  So,  too,  the  company  are  liable  to  pay  damages  for  an  injury 
caused  to  the  plaintiff,  by  flowing  his  land  in  a  great  freshet,  in 
consequence  of  their  bridges  damming  up  the  water,  although  the 
bridges  were  erected  by  another  company,  before  the  defendants' 
company  was  chartered,4  and  there  had  been  no  request  to  the 
defendants  to  remove  the  obstruction.5 

the  jury  to  the  fact  that  it  will  become  necessary  to  divert  a  stream  of  water 
crossing  it,  the  owner  of  the  land  will  have  no  additional  claim  for  damages 
when  the  stream  is  diverted.  And  it  is  not  essential  to  the  right  of  the  company 
to  divert  the  stream,  that  an  express  grant  for  that  purpose  should  be  contained 
in  the  inquisition.     B.  &  P.  Railw.  v.  Magruder,  34  Md.  79. 

3  Hatch  v.  Vermont  Central  Railw.,  25  Vt.  49  et  seq. ;  Mellen  v.  Western 
Railw.,  4  Gray,  301;  March  v.  C.  &  P.  Railw.,  19  N.  H.  372.  In  the  case  of 
Brickett  v.  Morris,  12  Jur.  (N.  S.)  803,  the  House  of  Lords,  in  a  Scottish  ap- 
peal, for  the  first  time,  as  was  claimed  by  Lord  Westbury,  established  the  prop- 
osition that  where  an  adjoining  riparian  proprietor  builds  in  the  channel  of  a 
running  stream,  it  is  incumbent  upon  him  to  show,  that  no  detriment  will  thereby 
ensue  to  the  adjoining  proprietor.  The  propositions  here  declared  are,  that 
riparian  proprietors  have  a  common  interest  in  the  water  of  a  running  stream,  and 
a  separate  property  in  the  alveus,  or  channel  thereof,  usque  ad  medium  jilum 
fluminis.  But  no  proprietor  may  so  use  his  property  in  the  channel  as  to  affect 
the  interest  of  the  opposite  owner ;  and,  in  order  to  entitle  a  riparian  proprietor 
to  relief  against  building  upon  the  channel,  it  is  not  necessary  to  prove  that  dam- 
age to  him  has  been,  or  is  likely  to  be,  caused  thereby.  In  such  case  the  onus 
of  showing  that  no  damage  will  arise,  lies  on  the  person  making  the  encroachment. 
Any  thing  done  in  the  channel  which  produces  no  sensible  effect  upon  the  stream 
is  allowable.  Upon  the  question  whether  any  such  rule,  as  to  the  burden  of  proof  in 
such  cases,  could  fairly  be  applied  to  railway  structures  necessarily  built  in  the  chan- 
nel of  a  running  stream  in  crossing  the  same  ;  the  company  having  the  right  to  make 
the  erections,  in  the  most  prudent  manner,  the  company  could  only,  at  most, 
would  seem,  be  held  responsible  for  such  present  or  prospective  damage  as  could 
be  established  by  legal  evidence  on  the  part  of  the  riparian  owners.  And  no 
presumption  against  the  company  should  be  raised  upon  the  mere  ground  of 
having  done  what  their  legislative  powers  allowed  them  to  do.  But  the  owner  of 
the  stream  is  not  responsible  for  damage  resulting  to  riparian  owners  in  conse- 
quence of  erections  by  other  parties  acting  under  an  independent  claim  of  right. 
Saxby  v.  M.  S.,  &c.  Railw.,  Law  Rep.  4  C.  P.  198.  Consent  of  the  land-owner 
to  the  erections  being  made  will  not  affect  his  remedy  under  the  statute.  Con- 
servators of  The  Thames  v.  Railw.  Co.,  Law  Rep.  4  C.  P.  59. 

4  Brown  v.  Cayuga  &  Susquehannah  Railw.,  12  N.  Y.  386. 

5  Per  Denio,  J.,  12  N.  Y.  486.     But  the  question  in  regard  to  the  liability  of 

[*331] 


EMINENT   DOMAIN.  PART  III. 

I.  Ami  where  the  waters  on  certain  lowlands  were  flowed  back 
upon  tlic  plaint  ill's  land,  by  reason  of  insufficient  openings  in  a 
railway  constructed  across  sucb  lowlands,  it  was  held  that  the 
company  were  liable  to  make  good  the  damages  sustained  by  plain- 
tilV.  although  no  statute  required  them  to  make  the  openings,  and 
they  could  no!  be  compelled  to  do  so  by  writ  of  mandamus.6  So, 
too,  in  regard  to  other  public  works,  if  damage  accrue  to  others  in 
of  their  imperfect  construction,  the  proprietors  are 
'  Liable,  as  for  instance  a  municipal  corporation,  for  insufficient 
sewers,  whereby  plaintiff's  factory  was  overflowed  in  a  freshet,  and 
the  property  therein  seriously  injured.7 

5.  In  a  case,  where  the  plaintiff's  garden  wTas  overflowed,  by 
the  manner  in  which  an  excavation  was  made,  in  the  course  of 
construction  of  a  railway  across  a  road,  or  highway,  by  carelessly 
cutting  into  a  drain,  or  culvert,  and  letting  out  the  water,8  it 
seems  to  have  been  admitted,  on  all  hands,  that  the  company 
would  have  been  liable  for  the  injury  if  it  had  been  done  by  per- 
sons  under  their  control,  or  in  compliance  with  the  directions  of 
their  surveyor  or.  engineers.8 

\ipl  where   the  plaintiff  owned  a  dock  on  the  east  side  of 

the  c pany  for  continuing  the  obstruction,  without  notice  to  remove  it,  was  not 

dedded  b)  the  court.    The  subject  in  regard  to  the  necessity  ofa  special  request, 

imewbal  discussed  in  Norton  v.  Valentine,  14  Vt.  239,  244.  In  Hubbard  v. 
Russell,  21  Barb.  4<>4,  it  is  held,  that  in  order  to  recover  damages  of  the  "eontinu- 
ator  of  a  private  nuisance,  originally  erected  by  another,"  there  must  be  proof  of 
a  request  to  remove  the  same.  But  where  a  railway  company  bought  up  a  navi- 
:i  company,  and  suffered  the  works  of  that  company  to  fall  to  decay,  so  that 
damage  was  suffered  by  a  municipal  corporation,  in  regard  to  their  harbor,  it  was 
held  the  company  were  liable  ;  although  only  a  nonfeasance  in  form,  it  operated 

st .mtially  as  a  misfeasance,  they  having  maintained  and  used  the  locks  of  the 
navigation  company  in  such  a  state  as  to  cause  the  injury.  Preston  v.  Eastern 
I  Law  Times,  288;  s.  c.  nom.  Preston  v.  Norfolk  Railw.,  2 
II.  &  X.  . 

'•  Lawrence  v.  Great  Northern  Railw.,  4  Eng.  L.  &  Eq.  265;  s.  c.  16  Q.  B. 
•■ .  C.  656. 
heater  White  Lead  Co.  v.  The  City  of  Rochester,  3  Comst.  463.     See 
Radcliff  v.  Brooklyn,  1  Comst.  195;   .Mayor  of  New  York  v.  Furze,  3  Hill, 
'.1:.' ;   Bailey  p.  .Mayor  of  New  York,  3  Hill,  531. 

!  r.  Southeastern  Railw.,  16  C.  B.  550;  s.  c.  32  Eng.  L.  &  Eq.  366. 
ir  a  full  statement  of  this  case.     But  there  is  no  liability  in- 
curred towards  a  mill-owner  below,  by  cutting  off  springs,  in  sinking  wells  upon 
one's  own  land.     I  basemore  v.  Richards,  2  H.  &  N.  168;  s.  c.  29  Law  Times, 

[*33J] 


§  79.  ERECTIONS   OBSTRUCTING   STREAMS.  347 

Hudson  River,  on  the  margin  of  a  bay,  under  a  charter  from  the 
state,  in  1849,  and  the  Hudson  River  Railway,  in  pursuance  of 
its  charter,  granted  in  1846,  constructed  their  road  across  the  bay, 
on  piles,  about  nineteen  hundred  feet  west  of  the  dock,  with  a 
drawbridge  sufficient  to  allow  a  passage  to  such  vessels  as  had 
before  navigated  the  bay,  the  charter  of  the  railway  containing  a 
provision,  that  if  any  dock  shall  be  "  cut  off"  by  the  railway, 
the  company  shall  extend  the  same  to  their  road,  it  was  held 
that  this  dock  was  not  "  cut  off"  within  the  meaning  of  the 
provision.9 

7.  And  under  the  New  York  statute,  and  the  same  rule  would 
probably  apply  in  other  states,  a  railway  company  which  is  com- 
pelled to  divert  a  stream  of  water  in  the  construction  of  its  road  is 
bound  not  only  to  restore  it,  as  nearly  as  practicable,  to  its  former 
state,  but  also  to  maintain  it  there,  since  the  mere  restoration  of 
the  stream  may  not  leave  it  as  secure  as  before.10 

8.  But  surface  water  produced  by  the  excavation  in  building 
the  railway  is  not  to  be  regarded  in  the  same  light  as  water  con- 
fined to  a  natural  channel,  and  in  such  case  the  company  will  be 
*  liable  to  an  action  for  turning  it  upon  the  land  of  an  adjoining 
proprietor,  unless  that  becomes  indispensable  in  order  to  maintain 
the  railway,  and  is  done  in  a  manner  to  do  the  least  injury  to  the 
land-owner.11 

9.  In  an  English  case,12  before  the  Lords  Justices  on  appeal,  where 
the  defendants  had  obtained  parliamentary  powers  to  take  the  water 
from  certain  springs,  being  the  feeders  of  a  river  upon  which  mills 
and  shops  were  in  operation,  upon  building  a  compensation  reser- 
voir to  supply  the  deficiency  caused  by  such  diversion,  by  saving 
the  waters  at  flood-tide  for  use  in  dry  times  ;  and  where  they  had 
built  such  reservoir,  and  one  of  the  riparian  owners  complained 
against  them  for  fouling  the  water  and  rendering  it  so  muddy,  by 
reasou  of  the  reservoir,  as  to  make  it  unfit  for  use  in  his  dyeing  estab- 
lishment, and  praying  for  an  injunction  against  the  defendants,  it 
was  held  their  parliamentary  powers  gave  them  no  right  to  foul  the 
water,  and  consequently  they  were  liable  to  an  action. 

10.  It  was  further  held  that  this  was  a  proper  case  for  a  court 

9  Tillotson  v.  Hudson  River  Railw.,  15  Barb.  406. 

10  Cott  v.  Lewiston  Railw.,  36  N.  Y.  214. 

11  Curtis  v.  Eastern  Railw.,  14  Allen,  55. 

12  Clowes  v.  The  Staff".  Potteries  Water-Works  Co.,  21  W.  R.  32. 

[*333] 


348 


EMINENT    DOMAIN. 


PART  III. 


nity  to  interfere  by  way  of  injunction:  1.  On  the  ground  of 
Baving  a  multiplicity  of  actions:  -J.  On  the  ground  that  the  court 
will  always  restrain  a  public  company  from  exercising  their  statu- 
tory powers  in  such  a  manner  as  to  interfere  with  the  rights  of 
others. 


SECTION    XVIII. 


Obstruction  of  Private  Ways. 


action  of  private  way,  matter  of  fact ; 
'-'.   /  /  on  one's  own  land,  not 


3.  But  railway  may  lawfully  pass  alomj  pub- 
lic street. 


1.  Where  the  statute  gives  a  right  of  action  against  the 
company,  when  in  the  construction  or  management  of  their  road 
they  shall  obstruct  the  safe  and  convenient  use  of  a  private  way, 
it  was  h.'ld  not  necessary  to  the  maintenance  of  the  action  that 
lilway  should  be  constructed  or  managed  in  an  illegal  and 
improper  manner.1  But  if  the  railway  be  shown  to  have  been 
constructed  and  managed  in  a  proper  manner,  and  a  passage  over 
the  railway  provided  for  the  private  way,  the  court  cannot  decide, 
as  matter  of  law,  whether  the  safe  and  convenient  use  of  the  way 
is  obstructed  or  not.  That  is  a  question  of  fact  to  be  settled  by 
the  jury.2 

2.  But  a  farm  road,  which  the  owner  of  the  land  has  constructed 
for  the  convenient  use  of  his  farm,  is  not  to  be  regarded  as  a 
private  way,  within  the  meaning  of  a  railway  act.3  A  private  way, 
within  the  construction  of  the  railway  acts,  is  a  way,  or  right  of 
way,  which  one  man  has  in  the  land  of  another.4  The  owner  of  a 
ly,  for  the  purpose  of  recovering  penalties  for  its  obstruc- 
tion, is  the  person  who,  for  the  time  being,  owns  such  road  in  pos- 
ii." 

1         »rd  Railw.  v.  Greely,  23  N.  H.  237. 

.  Wilton  Railw.,  L;:i  N.  H.  261. 
'  i        Boston,  Concord,  &  Montreal  Railw.,  21  N.  II.  114;  s.  p. 

Old  C.  &  X.  Railw.,  in;;  Mass.  1. 

mpsic  River  Railw.,  Vermont  Sup.  Court,  not  reported. 
■  Mann  v.  Great  &  Western  Railw.,  9  Ir.  Com.  Law  Rep.  105.' 


§81. 


STATUTE    REMEDY    EXCLUSIVE. 


349 


3.  But  it  has  been  held,u  that,  where  the  plaintiff's  right  of  way 
*  in  another's  land  was  obstructed  by  the  passage  of  a  railway 
through  the  streets  of  a  town,  in  accordance  with  their  charter,  no 
action  for  damages  could  be  maintained,  and  that  the  party  could 
have  no  redress,  unless  his  case  came  within  the  provisions  of  the 
statute  allowing  compensation. 


SECTION    XIX. 


Statute  remedy  Exclusive. 


1.  Remedy  for  land  taken,  exclusively  under 

the  statute. 

2.  But  if  company  do  not  pursue  statute  are 

liable  as  trespassers.     Liable  for  negli- 
gence also. 

3.  Courts  of  equity  often  interfere  by  injunc- 

tion. 


4.  Important  case  in  the  House  of  Lords. 

5.  Right  at  law  must  be  first  established. 

6.  Where  statute  remedy  fails,  common-law 

remedy  exists. 

7.  The  general  rule  adhered  to  in  America. 

8.  Company  adopting  works  responsible  for 

amount  awarded  for  land  damages. 


§  81.  1.  It  seems  to  be  well  settled,  notwithstanding  some  ex- 
ceptional cases,  that  the  remedy  given  by  statute  to  land-owners 
for  injuries  sustained  by  taking  land  for  railways,  is  exclusive  of 
all  other  remedies,  and  not  merely  cumulative.1 

8  McLaughlin  v.  Charlotte  &  S.  C.  Railw.,  5  Rich.  583.  But  this  decision 
seems  to  rest  upon  the  peculiar  views  of  this  state  upon  that  subject,  that  it  is 
lawful  to  take  private  property  for  public  use  without  compensation,  their  state 
constitution  containing  no  provision  upon  the  subject.  But  the  reported  cases 
in  this  state,  from  the  first,  Dun  v.  City  Council  of  Charleston,  1  Harper,  189 
(182-i),  manifest  a  scrupulous  regard  to  the  rights  of  property  owners,  when 
attempted  to  be  interfered  with  for  other  than  strictly  public  purposes.  And  we 
are  not  aware  that  practically,  and  as  a  general  thing,  the  legislature  of  this 
state  have  exercised  the  theoretical  right  which  it  possesses,  of  taking  private 
property  for  public  use  without  compensation.     We  believe  that  is  not  the  fact. 

1  East  and  West  India  Dock  &  Birmingham  Junction  Railw.  Co.  v.  Gattke,  3 
Mac.  &  Gor.  155  ;  s.  c.  3  Eng.  L.  &  Eq.  59  ;  Watkins  v.  Great  Northern  Railw. 
Co.,  16  Q.  B.  961 ;  s.  c.  6  Eng.  L.  &  Eq.  179 ;  Kimble  v.  White  Water  Valley 
Canal,  1  Carter,  285  ;  Knorr  v.  Germantown  Railw.  Co.,  1  Wharton,  256  ;  Mason 
v.  Kennebec  &  P.  Railw.  Co.,  31  Maine,  215 ;  s.  c.  1  Am.  Railw.  C.  62  ;  McCor- 
mack  v.  Terre  Haute  &  Richmond  Railw.,  9  Ind.  283.  But  in  Carr  v.  The 
Georgia  Railw.  &  Banking  Co.,  1  Kelly,  524,  it  was  held,  the  statute  remedy 
was  not  exclusive,  but  merely  cumulative.  This  case  professes  to  go  upon 
the  authority  of  Crittenden  v.  Wilson,  5  Cowen,  165,  where  it  was  held,  that  the 
party  whose  lands  had  been  overflowed,  by  means    of  a  dam  erected    by  the 

[*334] 


EMINENT   DOMAIN.  PART  III. 

'  J.  Bui  if  the  railway  company  have  assumed  to  appropriate 
tli.-  land,  in  violation  of  the  provisions  of  the  statute  to  be  complied 
with  on  their  part,  their  acts  are  ordinarily  to  be  regarded  as  tres- 
passes; and  where  they  have  acquired  the  right  to  the  use  of  the 
[and,  bul  have  omitted  some  duty  imposed  by  the  statute,  or  where 
they  have  beeD  guilty  of  negligence,  or  want  of  skill,  in  the  exer-. 

authority  of  the  legislature,  which  contained  a  provision  for  estimating  damages 
to  land-owners  injured  thereby,  —  might  maintain  an  action  as  at  common  law. 
decisions  go  upon  the  principle,  found  in  some  of  the  elementary  books, 
that  ;i  statutory  remedy  for  what  was  actionable  at  common  law  is  prima  facie 
irded  as  cumulative  merely.  It  seems  now  to  be  the  generally  received 
opinion  upon  this  subject,  that  the  statutory  remedy,  being  more  ample  and 
more  specific,  is  ordinarily  to  be  regarded  as  exclusive.  But  the  settled  differ- 
of  opinion,  among  the  judges  of  the  Queen's  Bench  upon  the  subject,  in 
Kennetl  Nav.  Co.  v.  Withington,  18  Q.  B.  531;  s.  c.  11  Eng.  L.  &  Eq.  472, 
shows  that  the  matter  is  not  quite  settled  in  that  country.  The  learned  editors 
of  the  American  Railway  Cases  have  an  able  and  very  satisfactory  note  upon  this 
subject  in  which  most  of  the  authorities  bearing  upon  the  point  are  thoroughly 
revised.  1  Am.  Railw.  C.  1G6,  167,  168,  169,  170,  171.  In  Aldrich  v.  The 
Cheshire  Railw.,  1  Foster,  359;  8.  c.  1  Am.  Railw.  C.  206,  it  is  held,  that  the 
statute  remedy  is  exclusive  of  all  others.  So  also  in  Troy  v.  The  Cheshire 
Railw.,  3  Foster,  83,  it  is  held,  that  the  statute  remedy  must  be  followed,  as  far 
as  it  extends,  but  if  it  only  extend  to  part  of  the  injury  occasioned,  the  party  may 
have  his  action  at  common  law  for  the  residue.  But  where  a  railway  company 
are  ordered  to  make  and  maintain  a  private  way,  for  the  benefit  of  a  party,  and 
fail  to  comply,  the  appropriate  remedy  is  the  one  pointed  out  in  the  statute. 
White  v.  Boston  &  Prov.  Railw.,  6  Cush.  420.  And  where  the  statute  provides 
no  specific  remedy  in  such  a  case,  an  action  on  the  case  will  lie  probably  upon 
general  principles. 

In  an  English  case,  Ambergate,  Nott.  &  Boston  &  E.  J.  Railw.  v.  Midland 
Railw.,  2  EL  &  Bl.  823;  8.  c.  22  Eng.  L.  &  Eq.  289,  where  the  statute  gives  a 
penalty  for  one  company  running  its  engines  upon  the  track  of  another  company, 
without  tirst  having  obtained  the  requisite  certificate  of  approval  of  the  engines 
by  the  second  company,  it  was  held,  that  this  did  not  take  away  the  common-law 
right  of  seizing  the  engines,  while  upon  their  track,  damage  feasant.  And  hav- 
ing made  the  distress  upon  the  engine,  while  so  unlawfully  on  their  track,  and  the 
first  company  having  demanded  its  surrender,  after  it  had  been  removed  off" 
the  defendant's  line,  with  the  declared  purpose  of  using  it  again  in  the  same 
way;  thai  such  demand  was  illegal,  and  the  defendants  justified  in  not  acceding 
to  it.  See  also,  in  confirmation  of  the  general  proposition  of  the  text,  New 
Albany  &  Salem  Railw.  v.  Connelly,  7  Porter  find.),  32;  Leviston  v.  Junction 
Railw.,  id  597  ;  Lebanon  v.  Olcott,  1  N.  H.  339;  Victory  v.  Fitzpatrick,  8  Ind. 
281.  See,  also,  Colcough  v.  The  Nashville  &  N.  W.  Railw.  Co.,  2  Head,  171 ; 
Brown  v.  Beatty,  34  Miss.  227;  Indiana  Central  Railw.  Co.  v.  Oakes,  20 
ind.  9. 

[*335] 


§'81.  STATUTE   REMEDY   EXCLUSIVE.  351 

cise  of  their  legal  rights,  they  make  themselves  liable  to  an  action 
upon  the  case  at  common  law.2 

*  3.  And  the  courts  of  equity  will  in  many  cases  interfere  by  in- 
junction ,  where  railway  companies  are  proceeding  to  take  land 
contrary  to  the  provisions  of  the  act  of  parliament.3 

4.  In  the  House  of  Lords,  in  one  case,4  this  principle  is  very 
extensively  discussed,  although  not  arising  in  the  case  of  a  rail- 
way, or  where  the  land  itself  was  proposed  to  be  taken.  But 
here  the  injury  complained  of  was,  that  the  company's  works,  in 
the  manner  in  which  they  had  been  carried  on,  rendered  the  re- 
spondent's land  useless.     This  was  done  by  means  of  the  gas 

2  Watkins  v.  Great  Northern  Railw.  Co.,  12  Q.  B.  961 ;  s.  c.  6  Eng.  L.  & 
Eq.  179 ;  Dean  v.  Sullivan  Railw.  Co.,  2  Foster,  316 ;  s.  c.  1  Am.  Railw.  C. 
214;  Mayor  of  Lichfield  v.  Simpson,  8  Ad.  &  Ellis  (N.  S.),  65;  Furniss  v. 
Hudson  River  Railw.  Co.,  5  Sandf.  S.  C.  551;  Turners.  Shef.  &  Rotherham 
Railw.,  10  M.  &  W.  425.  In  this  last  case,  the  injury  complained  of  was  the 
obstruction  of  ancient  lights  by  the  erection  of  the  company's  station-house, 
done  under  the  act;  and  the  dust,  &c,  drifted  from  the  station-house  and 
embankment  into  the  plaintiff's  house.  The  plaintiff's  house  not  being  upon  the 
schedule  attached  to  the  bill,  the  company  had  no  right  under  the  act  to  take  it, 
or  injuriously  to  affect  it.  So  that  the  parties  stood  as  at  common  law.  See 
also  Shand  v.  Henderson,  2  Dowl.  P.  C.  519 ;  Davis  v.  London  &  Blackwall 
Railw.,  2  Scott,  N.  R.  74;  s.  c.  2  Railw.  C.  308. 

3  Sto,ne  v.  Commercial  Railw.,  9  Sim.  621;  s.  c.  1  Railw.  C.  375 ;  Lord 
Chancellor  in  Manser  v.  N.  &  E.  Railw.  Co.,  2  Railw.  C.  380,  391;  Priestly 
v.  Manchester  &  L.  Railw.  Co.,  4  Yo.  &  Col.  Ex.  63;  s.  c.  2  Railw.  C.  134; 
London  &  Birmingham  Railw.  Co.  v.  Grand  Junction  Canal  Co.,  1  Railw.  C. 
221.  In  this  case,  as  well  as  the  next  preceding,  it  is  said  the  company  is  to  be 
the  judge  of  the  most  feasible  mode  of  carrying  forward  its  own  operations,  and 
is  not  liable  to  be  called  to  account  for  the  exercise  of  this  discretion,  so  long  as 
they  act  bona  fide,  and  with  common  prudence.  But  it  affords  no  just  ground  of 
equitable  interference,  that  the  special  tribunal,  provided  by  statute  to  have 
exclusive  jurisdiction  of  certain  claims,  is  altogether  incompetent  to  decide  such 
questions  as  naturally  arise.  If  any  such  defect  exists,  the  legislature  alone  can 
afford  redress.  Barnsley  Canal  Co.  v.  Twibill,  7  Beav.  19  ;  s.  c.  3  Railw.  C.  471. 
Nor  is  the  land-owner  entitled  to  maintain  a  common-law  action,  because  he 
refused  to  join  in  the  proceedings  under  the  statute,  the  company  having  pro- 
ceeded ex  parte,  and  caused  an  appraisal,  and  deposited  the  sum  awarded  for 
compensation.  Hueston  v.  Eaton  &  H.  Railw.,  4  Ohio  (N.  S.),  685.  See  also 
The  Western  Maryland  Railw.  Co.  v.  Owings,  15  Md.  199 ;  Sturtevant  v.  Milw. 
Wat.  &  B'.  Railw.  Co.,  11  Wis.  61;  Powers  v.  Bears,  12  Wis.  213;  Davis  v. 
La  Crosse  &  Milw.  Railw.  Co.,  id.  16;  Burns  v.  Milw.  &  Miss.  Railw.  Co.,  Wis. 
450. 

4  Imperial  Gas  Light  &  Coke  Co.  v.  Broadbent,  7  Ho.  Lds.  606 ;  s.  c.  5  Jur. 
(N.  S.)  1319. 

[*336] 


EMINENT   DOMAIN.  PART  III. 

iping  from  the  company's  works  deadening  the  life  of  vegeta- 
tion, the  respondent  being  a  market  gardener.  The  respondent 
had  brought  an  action  against  the  company  for  the  nuisance, 
which  by  agreement,  upon  the  suggestion  of  the  court,  had  been 
referred  to  an  arbitrator,  who  had  reported  damages,  as  having 
accrued  in  the  mode  complained  of,  to  a  considerable  extent. 
'  Til  company  were  now  proceeding  to  make  a  very  extensive  ad- 
dition to  their  works,  when  the  respondent  obtained  an  injunction 
against  them,  which,  upon  final  hearing  before  the  Chancellor, 
assisted  by  the  common-law  judges,  had  been  made  perpetual,6  and 
the  question  was  then  appealed  by  the  company  into  the  House  of 
Lords. 

•  .  It  was  here  held,  affirming  the  decision  below,  that  in  such 
•  the  plaintiff  in  equity  cannot  claim  a  perpetual  injunction, 

until  his  right  is  first  established  at  law.  But  this  was  sufficiently 
done  in  the  present  case,  by  the  award  of  the  arbitrator.  But  after 
the  right  is  once  established  at  law,  it  is  the  province  of  the  equity 
judge  to  determine  how  far  the  cause  of  complaint  may  have  been 
removed  by  any  subsequent  alteration  of  the  works  ;  and  this  ques- 
tion will  not  be  referred  to  a  trial  at  law. 

•  '..  It  was  also  held  here  that  the  respondent  had  no  remedy 
under  the  statute,  and  consequently,  although  such  statutory 
remedy  to  its  extent  was  necessarily  exclusive  of  all  others,  yet 
where  the  wrong  done  is  not  authorized  by  these  powers,  the  com- 
mon-law right  of  action  still  remained.6 

7.  The  general  principle  that  the  statute  remedy,  as  far  as  it 
extends,  is  exclusive,  seems  to  be  universally  adhered  to  in  the 
American  courts,  with  slight  modifications,  some  of  which  are, 
and  some  are  not,  perhaps,  entirely  consistent  with  the  mainte- 
nance of  the  general  rule.7 

3.  It  was  held  in  one  case,  where  the  land  damages  had  been 
38ed  under  the  statute,  and  judgment  rendered  for  the  amount 
nst  the  company,  that  a  subsequent  company,  formed  by  the 

-.  i     before  V.  C.  Wood,  2  Jur.  (N.  S.)  1132;  before  the  Chancellor,  3  id. 
221. 

lie  following  eases  cited  in  argument:  Hole  v.  Barlow,  4  C.  B.  (N.  S.) 
imey-General  c  The  Sheffield  Gas  Consumers'  Co.,  3  De  G.,  M.  &  G. 
304  :  Sam-  >.  \i,  1,,,1.  16  Vesey,  338  ;  Wynstanley  v.  Lee,  2  Swanst.  333  ;  Haines 
v.  Taj  lor,  10  Beav.  75. 

7  Pettibone  v.  La  Crosse  &  Milw.  Railw.  Co.,  14  Wis.  443 ;  Vilas  v.  Milw.  & 
Miss.  Railw.  Co.,  15  id.  233. 


§82. 


LANDS   INJURIOUSLY   AFFECTED. 


353 


mortgagees  of  the  first  company,  were  responsible  for  the  amount 
of  such  judgment,  if  they  continued  to  operate  the  road  and  use 
the  right  of  way  for  which  the  judgment  was  rendered.8  But  this 
seems  a  considerable  stretch  of  construction,  although  eminently 
just  and  reasonable. 


♦SECTION    XX. 


Lands  injuriously  affected. 


1.  Obstruction  of  way,  loss  of  custom. 

2.  Equity  will  not  enjoin  legal  right. 

3.  Liable  for  building  railway,  so  as  to  cut 

off  wharf. 

4.  Not  liable  for  crossing  hicjhicay  on  level. 

5.  English  statute  only  includes  damages,  by 

construction. 

6.  Equity  icill  not  enjoin  a  doubtful  claim. 

7.  Damages   unforeseen,  at  the  time  of  the 

appraisal,   may  be  recovered,  in  Eng- 
land. 

8.  Injuries  to  ferry,  and  towing  path,  com- 

pensated. 


9,  10.  Remote  injuries  not  ivithin  the  statute. 

11.  Damages  compensated,  under  statute  oj 

Massachusetts. 

12.  Damages  not  compensated,  as  being  too 

remote. 

13.  For  negligence  in  construction,  remedy  at 

common  law. 

14.  Or  neglect  to  repair. 

15.  Recovery  under  the  statute,  Sfc. 

16.  Possession  by  railway,  notice  of  extent  of 

title. 

17.  Rcdlways  have  right  to  exclusive  posses- 

sion of  roadway. 


§  82.  1.  The  right  of  a  party  to  claim  consequential  damages, 
where  his  land  was  not  taken,  but  only  injuriously  affected,  was 
very  thoroughly  discussed  by  Lord  Truro,  Chancellor,  in  one 
case,1  where  the  defendant,  a  furrier,  claimed  damage,  in  conse- 
quence of  the  dust  and  dirt,  occasioned  by  the  company,  having 
injured  his  goods,  and  that  his  customers  had  been  compelled,  by 
the  obstruction  caused  by  the  company's  works,  to  quit  the  side  of 
the  road  upon  which  the  defendant's  shop  was  situated,  before 
they  arrived  at  that  point,  and  cross  the  street  to  get  along,  by 
reason  whereof  he  had  lost  custom.  The  defendant  also  claimed 
that  the  company  had  obstructed  a  passage  to  his  buildings,  by 
which  he  had  an  entrance  to  the  back  part  of  his  premises.  The 
Lord  Chancellor  considered  that  if  the  party  had  any  claim  for 
compensation  it  was  to  be  procured  under  the  statute  and  esti- 
mated   by  the    sheriff's  jury,  and    dissolved   the  injunction.      It 

8  Pfeifer  v.  Sheboygan  &  Fond  du  Lac  Railw.  Co.,  18  Wis.  155. 
1  East  &  W.  I.  Docks  &  Birmingham  Junction  Railw.  Co.  v.  Gattke,  3  Mac. 
&  Gor.  155 ;  s.  c.  3  Eng.  L.  &  Eq.  59. 

vol.  i.  23  [*338] 


85  I  EMINENT   DOMAIN.  PART  III. 

us  now  to  be  settled  by  the  decision  of  the  House  of  Lords 
(Rickett  r.  .Metropolitan  Railway),  that  unless  the  injury  is  of 
Midi  a  nature  as  to  be  actionable  aside  from  the  statute,  it  will  not 
ei, tit Ic  the  party  to  compensation  under  the  statute,  and  that 
interruption  of  business  therefore,  by  making  access  more  incon- 
venient, will  not  entitle  the  party  to  such  compensation.2  But 
where  the  ■  works  of  a  railway  diminish  the  light  of  premises, 
although  the  pecuniary  value  of  plaintiff's  interest  is  not  diminished, 
property  in  the  neighborhood  generally  having  advanced  in  price, 
the  owner  is  entitled  to  compensation.3  Where  the  value  of  a 
.house  is  lessened  by  railway  works  producing  noise,  smoke,  and 
vibration,  the  party  is  entitled  to  compensation  under  the  statute.4 
But  where  the  railway  company  lowered  a  highway  several  feet, 
thereby  greatly  obstructing  access  to  plaintiff's  dwelling,  and 
obliging  him  to  make  use  of  a  ladder  for  that  purpose,  it  was  held 
that  no  claim  could  be  maintained  under  that  clause  in  the  statute 
for  injuriously  affecting  land,  the  injury  complained  of  being  one 
of  a  permanent  nature,  and  therefore  the  subject  of  compensation 
under  the  general  provision  for  land  damages.5  But  where  the 
works  of  a  railway  intercepted  water  which  would  have  percolated 
through  the  strata  of  the  earth  into  plaintiff's  well,  and  also 
drained  off  water  which  had  reached  the  well  by  such  percolation : 6 

2  Law  Rep.  2  H.  L.  175. 

■'  Eagle  v.  Charing  Cross  Railway,  Law  Rep.  2  C.  P.  638.  A.  owned  a  house 
on  a  highway ;  a  railway  company,  under  powers  given  them  by  statute,  made 
an  embankment  on  the  highway  opposite  the  house,  thereby  narrowing  the  road 
from  fifty  to  thirty-three  feet,  thus  materially  diminishing  the  value  of  the  house 
for  sale  or  letting,  and  obstructing  the  access  of  light  and  air.  Held,  1.  That  A. 
had  sustained  particular  damage  from  the  works ;  2.  That  the  damage  would 
have  been  actionable  if  not  authorized  by  statute ;  3.  That  the  injury  done  was 
an  injury  to  A.'s  estate,  and  not  a  mere  injury  to  A.  personally  or  to  his  trade; 
and  that,  these  three  things  concurring,  A.  was  entitled  to  compensation  under 
-  Vict.  cc.  18,  20.     Beckett  v.  Midland  Railw.,  Law  Rep.  3  C.  P.  82. 

*  Brand  v.  Hammersmith  &  City  Railw.,  L.  R.  2  Q.  B.  223 ;  s.  c.  reversed  in 
L.  l;    I  Ho.  Lds.  171.     See  also  post,  pi.  8,  n.  16. 

Moore  r.  Great  Southern  &  Western  Railw.  Co.,  10  Ir.  Com.  Law  Rep.  46, 
in  Exch.  <  hamber  S.  P.  Tuohey  v.  Same,  id.  98.  But  the  English  courts  seem 
to  consider  that  compensation  in  such  a  case  may  be  given  under  the  provision 
for  damages  where  land  is  injuriously  affected.  Chamberlain  v.  West  End  of 
London  &  C.  Railw.,  2  B.  &  S.  617;  s.  c.  3  B.  &  S.  768;  8  Jur.  (N.  S.)  935. 

■  New  River  ( !o.  v.  Johnson,  2  Ellis  &  Ellis,  435;  s.  c.  6  Jur.  (N.  S.)  374, 
Q,  B.  This  question  is  a  good  deal  discussed  in  a  later  case,  Reg.  v.  Met.  Board 
of  Works,  3  B.  &  S.  710,  where  it  was  held  that  the  railway  company  were  not 

[*339] 


§  82.  LANDS  INJURIOUSLY  AFFECTED.  355 

it  was  held  the  land-owner  had  no  remedy  either  under  the  statute 
or  at  common  law. 

2.  This  case  was  an  application,  by  the  company,  for  an  injunc- 
tion to  restrain  the  party  from  proceeding  under  the  statute,  and 
the  court  held,  that  as  the  party  had  a  clear  legal  right,  under  the 
act  of  parliament,  they  could  not  be  deprived  of  pursuing  it  in  the 
*  mode  pointed  out,  and  fully  affirmed  the  views  of  Lord  Denman, 
C.  J.,  in  Regina  v.  Eastern  Counties  Railway  Company,7  where 
the  damage  claimed  was  by  lowering  a  road  upon  which  the  land 
abutted,  so  as  to  impede  the  entrance  to  the  land,  and  compel  the 
owner  to  build  new  fences. 

3.  The  construction  of  a  railway  across  flats,  in  front  of  plain- 
tiff's wharf,  gives  him  a  right  to  damage  under  the  statute  of 
Massachusetts,  although  the  wharf  itself  remained  uninjured.8 
But  the  charter  of  a  railway  company  having  authorized  them  to 
make  certain  specified  erections  between  the  channels  of  two  rivers, 
and  such  erections  having  so  changed  the  currents  of  the  rivers  as 
to  render  more  sea-wall  necessary  to  secure  certain  wharves  and 
flats  in  the  vicinity,  it  was  held  that  the  damage  thereby  occasioned 
was  damnum  absque  injuria? 

4.  One  cannot  claim  damage  of  a  railway  company,  by  reason 
of  their    track    crossing  a  public    highway,   near    his    dwelling, 

responsible  for  underground  currents  of  water  intercepted  by  their  works,  either 
at  common  law  or  under  the  statute. 

7  2  Ad.  &  Ellis  (N.  S.),  347.  See  post,  §  99.  In  this  case  the  court  held 
that  the  injuries  complained  of  clearly  came  within  the  act,  and  Lord  Denman,  in 
closing  his  opinion,  makes  a  very  significant  reply  to  a  class  of  arguments,  not 
uncommon  upon  all  subjects.  "Before  we  conclude,  we  shall  brieily  advert  to 
an  argument  much  pressed  upon  us ;  that  if  we  make  this  rule  absolute,  any 
injury  to  land,  at  any  distance  from  the  line  of  railway,  may  become  the  subject 
of  compensation.  If  extreme  cases  should  arise,  we  shall  know  how  to  deal  with 
them  ;  but  in  the  present  instance,  the  alleged  injury  is  to  land  adjoining  a  road, 
which  has  been  '  lowered  '  under  the  provisions  of  the  act,  and  which  is  therefore 
land  injuriously  affected,  by  an  act  expressly  within  the  powers  conferred  by  the 
company." 

8  Ashby  v.  The  Eastern  Railw.  Co.,  5  Met.  368 ;  s.  c.  1  Am.  Railw.  C.  356. 
And  in  Bell  v.  The  Hull  &  Selby  Railw.,  2  Railw.  C.  279,  a  similar  decision  is 
made  under  the  English  statute.  But  see  Gould  v.  Hudson  R.  Railw.,  6  N.  Y., 
522. 

9  Fitchburg  Railw.  v.  Boston  &  Maine  Railw.,  3  Cush.  58  ;  8.  c.  1  Am.  Railw. 
C.  508 ;  ante,  §  75. 

[*340] 


356  EMINENT   DOMAIN.  PART  III. 

upon  a  level,  the    highway  being   the   principal   approach  to  his 

groun 

;,.  h  is  held  that  the  English  statute,11  giving  compensation, 
where  lands  are  injuriously  affected,  was  intended  to  include  only 
sueh  damages  as  were  caused  by  the  erection  of  the  company's 
3,  and  not  such  as  might  in  future  be  caused  by  the  use  of 
the  works,  this  being  the  case  of  Gas  Works,  and  the  68th  section 
vl'  the  Lands  Clauses  Acts  *  being  made  a  part  of  the  company's 
Bpecial  act.  But  this  certainly  could  not  extend  to  the  ordinary 
use  of  a  railway,  which  is  the  only  or  the  principal  mode  of  injuri- 
ously affecting  lands  not  taken,  and  which  could  be  as  strictly  esti- 
mated, at  the  time  of  the  company's  works  being  erected,  as  from 
time  to  time  thereafter. 

6.  In  one  case,12  where  the  lessee  of  an  inn  and  premises, 
situated  near  a  tunnel  on  the  company's  road,  claimed  damages, 
because  the  vibration  caused  by  the  trains  prevented  his  keeping 
his  beer  in  the  cellar  in  a  fit  state  for  his  customers,  and  the  value 
of  the  house  was  thereby  lessened,  being  rendered  unfit  for  a 
public-house  ;  and  the  plaintiffs  moved  for  an  injunction  to  re- 
strain the  defendant  from  proceeding  to  assess  damages  under 
the  statute  ;  the  Lord  Chancellor  denied  the  motion,  upon  the 
ground  that  the  remedy  at  law  was  altogether  adequate.  But  his 
lordship  intimated  a  very  decided  opinion,  that  no  such  damages 
could  be  recovered.  He  says,  "  Whether  an  action  will  lie  on 
behalf  of  a  man  who  sustains  a  private  injury,  by  the  exercise  of 
parliamentary  powers,  done  judiciously  and  cautiously,  is  not  an 
easy  question,  or  rather  it  is  not  easy  to  come  to  the  conclusion 
that  an  action  will  lie.     I  entertain  a  decided  opinion  (probahly, 

T.  erroneous),  that  no  such  action  will  lie."  13 

7.  And  where  the  plaintiff's  damages  for  land  taken  by  the 
company,  and  by  severance  and  otherwise,  were    determined  by 

Caledonian  Railw.  v.  Ogilvy,  2  McQ.  Ho.  Lds.  229  ;  s.  c.  29  Eng.  L.  & 
Eq.  22. 

11  Law  Times,  February,  1857,  p.  329. 
1  The   London  ,V  X.  VV.  Railw.  Co.  v.  Bradley,  3  Mac.  &  Gor.  366;  s.  c.  6 

Han sramith  Railw.  v.  Brand,  L.  R.  4  Ho.  Lds.  171. 

13  Hatch  r.  Vermont  Central  Railw.  Co.,  25  Vt.  49;  s.  c.  28  id.  142.  The 
difficult]  to  a  mill,  by  reason  of  the  frequent  passing  of  trains  rendering  it 

to  I.'-  considered  in  estimating  land  damages.     Western  Penn. 
Railw.  ('<..  r.  Hill,  56  Penn.  St.  460. 
[*341] 


§  82.  LANDS   INJURIOUSLY   AFFECTED.  357 

an  arbitrator,14  but  from  the  road  being  built  across  certain  flats, 
with  insufficient  openings,  the  waters  became  dammed  up  and 
injured  the  plaintiff's  remaining  lands,  it  was  held,  he  was  entitled 
to  recover  "  as  for  an  unforeseen  injury,  arising  from  the  manner 
in  which  the  railway  was  constructed."  But  it  is  here  said,  "  The 
*  company  might,  by  erecting  their  works  with  proper  caution,  have 
avoided  the  injury."  It  seems  this  is  the  only  ground  of  an 
action. 

8.  In  a  doubtful  case  the  court  issued  an  alternative  mandamus 
and  required  a  return  of  the  facts.15  So,  too.  a  party  whose  ferry 
has  been  materially  lessened  in  value,  by  obstructing  access  to  it, 
may  recover  damages  of  the  company  under  the  statute.16  So,  too, 
if  a  towing-path  be  obstructed,  or  the  navigation  diverted  from  it, 
the   owner   under    a   similar   statute    may   have   compensation.17 

"  Lawrence  v.  Great  N.  Railw.  Co.,  16  Q.  B.  643;  s.  c.  6  Railw.  C.  656; 
s.  c.  4  Eng.  L.  &  Eq.  265 ;  ante,  §  79,  n.  6  ;  §  74,  n.  5 ;  L.  &  Y.  Railw.  v. 
Evans,  15  Beav.  322 ;  s.  c.  19  Eng.  L.  &  Eq.  295.  Under  most  of  the  American 
statutes,  the  damages,  as  well  prospective  as  present,  must  be  assessed  at  once, 
and  no  recovery  can  be  had  for  unforeseen  injury,  more  than  in  any  case  of  a 
recovery  of  damages  for  a  tort.  But  in  the  case  of  Lancashire  &  Y.  Railw.  v. 
Evans,  it  is  obvious,  from  the  elaborate  review  of  the  case  by  the  Master  of  the 
Rolls,  that  the  English  courts  now  regard  the  land-owner  as  entitled  to  make 
new  claims,  from  time  to  time,  as  they  occur,  for  any  injurious  consequence  of 
the  construction  of  the  works.  For  any  unlawful  act,  in  the  construction  or  use 
of  the  works,  an  action  at  common  law  is  the  proper  remedy. 

15  Queen  v.  The  North  Union  Railw.  Co.,  1  Railw.  C.  729. 

16  In  re  Cooling,  19  Law  J.  Q.  B.  25 ;  s.  c.  nom.  Cooling  v.  Great  Northern 
Railw.,  15  Q.  B.  486  ;  Hodges  on  Railways,  277.  It  is  said  here  that  a  ferry  is 
different  from  a  public-house,  whose  custom  is  said  to  be  injured  by  obstructing 
the  travel  and  access  to  the  house,  by  cutting  through  thoroughfares  leading  to  it, 
which,  it  has  been  held,  is  no  ground  pf  claiming  damage  under  a  similar  statute. 
The  King  v.  The  London  Dock  Co.,  5  Ad.  &  El.  163.  But  this  case  is  consid- 
ered as  overruled  by  Reg.  v.  The  Eastern  Counties  Railw.  Co.,  2  Q.  B.  347  ; 
Chamberlain  v.  East  End  of  London  &  Crys.  Pal.  Railw.  Co.,  2  B.  &  S.  617; 
s.  c.  3  B'.  &  S.  768;  8  Jur.  (N.  S.)  935.  Where  a  railway  company  were  em- 
powered by  act  of  parliament  to  construct  a  bridge  for  the  passage  of  their  trains 
across  a  river,  and  to  include  a  passage  for  foot-passengers  to  take  toll  thereon, 
so  near  an  ancient  ferry  as  greatly  to  reduce  its  traffic,  it  was  held  that  the  ferry 
being  a  franchise,  and  therefore  a  hereditament,  was  "lands"  within  the  mean- 
ing of  the  act  of  parliament  allowing  compensation  for  "lands  injuriously  af-* 
fected  "  by  the  construction  of  a  railway ;  and  therefore  the  plaintiff  prosecutor 
was  entitled  to  recover.  The  Queen  v.  Cambrian  Railw.,  L.  R.  6  Q.  B.  422; 
Ricket  v.  Met.  Railw.,  Law  Rep.  2  Ho.  Lds.  175,  and  Brands.  Hammersmith 
Railw.,  4  id.  171,  were  distinguished  from  the  present  case. 

17  The  King  v.  Commis.  of  Thames  &  Isis,  5  Ad.  &  Ell.  804. 

[*342] 


EMINENT    DOMAIN.  PART  III. 

-  also,  em  occasional  flooding  of  Lands,  caused  by  a  proper  exe- 
cution  of  parliamentary  powers,  is  within  the  remedy  given  by 
Btatut 

9.  Some  questions  under  this  head  have  arisen,  in  regard  to 
mines  and  minerals,  nol  of  suflBcient  importance  to  be  stated  in 

;i.:       Where  the  damage  resulted  from  the  company  turning  a 
>k,  the  courl  ordered  a  mandamus.20    But  brewers,  accustomed 
to  take  water  from  a    public  river,  are  not  entitled  to  receive  com- 
pensation when   the   waters  were  deteriorated  by  the  works  of  a 
docfe  company.33 

10.  li  was  held  thai  a  tithe-owner  is  not  entitled  to  compen- 
sation *  unless  the  act  contain  an  indemnity  in  his  favor.22  The 
interest  of  a,  tithe-owner  is  too  remote  and  incidental  to  be  the 
Bubjecl  of  general  indemnity.  It  often  forms  the  basis  of  special 
statutory  provisions  for  indemnity. 

11.  In  a  well-considered  case,  the  rule  in  regard  to  what 
damage  is  to  he  included  under  the  terms  "  lands  injuriously 
affected,"  or  equivalent  terms,  is  thus  laid  down:  "All  direct 
damage  to  real  estate  by  passing  over  it,  or  part  of  it,  or  which 
affects  the  estate  directly,  although  it  does  not  pass  over  it,  as  by 
a  deep  ('at  or  high  embankment,  so  near  lands  or  buildings  as  to 
prevent  or  diminish  the  use  of  them,  by  endangering  the  fall  of 
buildings,  the  caving  of  earth,  the  draining  of  wells,  the  diversion 
of  water-courses,"  by  the  proper  erection  and  maintenance  of  the 

'"  Wan-  r.  Regent's  Canal  Co.,  3  De  G.  &  Jones,  212. 

19  Fenton  r.  Trent  &  Mercy  Xav.  Co.,  9  M.  &  W.  203  ;  Cromford  Canal  Co.  v. 
Cutts,6  Railw.  <'.  142;  The  King  v.  Leeds  &  Selhy  Railw.  Co.,  3  Ad.  &  Ell.  683. 

•    Reg    b    North  Midland  Railw.  Co.,  11  Ad.  A:  El.  955;  s.  c.  2  Railw.  C.  1. 

11  Tli'  King  >'.  Bristol  Dock  Co.,  12  East,  420.  But  where  mines  below  the 
pany's  works  are  injured  in  consequence  of  the  negligent  or  imperfect  mode 
of  constructing  or  maintaining  the  company's  structures  and  cuttings,  the  person 
so  injured  may  maintain  a  common-law  action  against  the  company.  Bagnall  v. 
I. ond. .n  &  N.  W.  Railw.,  7  II.  &  N.  423.  Affirmed  in  Exchequer  Chamber,  31 
Law  .1.  180.  See  also  Reg.  v.  Fisher,  3  B.  &  S.  191  ;  s.  c.  9  Jur.  (N.  S.)  571 ; 
Elliot  r.  Northeastern  Railw.  Co.,  9  Jur.  (N.  S.)  555;  s.  c.  10  Ho.  Lords  Cas. 

.  "  Hex  r.  The  Commissioners  of  Nene  Outfall,  9  B.  &  C.  875;  London  & 
Blackwall  Railw.  Co.  v.  Letts,  3  H.  L.  Cases,  470;  s.  c.  8  Eng  L.  &  Eq.  1; 
Railways,  289,  n.  (m).  The  taking  of  lands  compulsorily  by  a  rail- 
way company  and  the  erection  of  their  works  thereon  is  no  breach  of  a  covenant 
by  the  owner  not  to  build  upon  the  land.  Baily  v.  De  Crespigny,  17  W.  R.  494; 
SC.  1..  i:  .  I  Q.  B.  180. 
[•343] 


§82.  LANDS   INJURIOUSLY   AFFECTED.  359 

company's  works.  "  Also,  as  being  of  like  character,  blasting  a 
ledge  of  rocks  so  near  houses  or  buildings  as  to  cause  damage  ; 
running  a  track  so  near  as  to  cause  imminent  and  appreciable 
danger  by  fire  ;  obliterating  or  obstructing  private  ways  leading  to 
houses  or  buildings,"  —  all  these  and  some  others,  doubtless,  are 
included. 

12.  "  But  that  no  damage  can  be  assessed  for  losses  arising 
directly  or  indirectly  from  the  diversion  of  travel,  the  loss  of  cus- 
tom to  turnpikes,  canals,  bridges,  taverns,  coach  companies,  and 
the  like ;  nor  for  the  inconveniences  which  the  community  may 
suffer  in  common,  from  a  somewhat  less  convenient  and  beneficial 
use  of  public  and  private  ways,  from  the  rapid  and  dangerous 
crossings  of  the  public  highways,  arising  from  the  usual  and  ordi- 
nary action  of  railroads,  and  railroad  trains,  and  their  natural 
incidents."  23 

*  13.  It  is  held  also  in  this  case,  that  no  damages  can  be  assessed 
under  the  statute,  for  cutting  through  a  watercourse  in  making 
an  embankment  without  making  a  culvert,  whereby  the  water  is 
made  to  flow  back  and  injure  the  plaintiff's  land,  at  a  distance 
from  the  railway,  no  part  of  which  is  taken,  the  remedy  being  by 
action  at  common  law.23 

14.  And  where  the  company,  by  consent  of  the  land-owner, 
enters  upon  the  land  and  makes  the  requisite  erections,  which  are 
subsequently  conveyed  to  it  with  the  land  by  the  land-owners, 
it  was  held  such  grantor  is  not  estopped  from  claiming  damages 
resulting  from  want  of  proper  care  and  skill  in  constructing  the 
works,  or  from  neglect  to  keep  them  in  repair.24 

23  Proprietors  of  Locks  &  Canals  v.  Nashua  &  Lowell  llailw.,  10  Cush.  385. 
Shaw,  C.  J.  (391,  392).  Nor  is  the  party,  whose  lands  lie  near  a  railway  line, 
entitled  to  compensation,  for  being  injuriously  affected,  by  persons  in  the  trains 
overlooking  the  grounds,  thus  rendering  them  less  comfortable  and  secluded,  for 
the  walks  of  the  family  and  visitors.  Nor  can  the  party  claim  compensation  for 
vibration  of  the  ground  caused  by  the  use  of  the  road,  the  statute  only  extending 
to  damages  caused  by  the  constmction  of  the  works.  Reg.  v.  Southeastern  Railw., 
in  re  Penny,  7  Ellis  &  Black,  6G0,  ante,  pi.  5.  But  actual  injury  during  the  con- 
struction of  a  railway,  by  vibration  caused  by  the  ballast  trains,  is  to  be  compen- 
sated;  but  by  Campbell,  C.  J.,  it  is  said  such  vibration  caused  by  running  trains 
after  the  road  is  completed  will  merit  a  different  consideration.  lb.  See  also 
Croft  v.  London  &  N.  W.  Railw.  Co.,  3  B.  &  S.  436. 

24  Morris  Canal  &  Banking  Company  v.  Ryerson,  3  Dutcher,  457  ;  Waterman 
v.  Conn.  &  Pass.  Riv.  Railw.,  30  Vt.  610;  Lafayette  Plank-Road  Co.  v.  New 
Albany,  &c.  Railw.,  13  Ind.  90. 

[*344] 


360  EMINENT    DOMAIN.  PART  in. 

L5,  The  rule  of  the  English  courts  that  damages  can  only  be 
recovered  for  injuriously  affecting  land,  where  but  for  the  statute 
the  acl  complained  of  would  be  just  ground  of  action  at  common 
law,  does  not  apply  where  part  of  the  land  is  taken  and  damages 
are  Bought,  not  only  for  the  part  taken,  but  for  the  rest  of  the  land 
being  injuriously  affected,  either  by  severance  or  otherwise.25  And 
it  was  lure  held  that  the  owner  of  a  mill  was  entitled  to  have 
damages  assessed  to  him  for  the  increased  exposure  of  the  same 
to  fire  by  the  passage  of  the  company's  trains.  But  loss  of  trade 
caused  by  the  operations  of  the  company  during  the  construction 
of  their  works  is  not  damages  for  which  the  party  is  entitled  to 
compensation.26  But  a  person  may  claim  damages  on  the  ground 
of  being  injuriously  affected  on  account  of  the  obstruction  or 
diversion  of  a  public  way  by  the  construction  of  the  works  of  a 
railway.27 

L6.  The  owners  of  land  adjoining  a  railway  track  are  affected 
with  presumptive  notice  of  the  rights  of  the  company  from  long 
*  use.  the  same  as  in  regard  to  other  owners  in  possession.28  And 
equity  will  enjoin  an  adjoining  owner  to  a  railway  track  against 
making  erections  which  will  interfere  with  the  company  repairing 
its  track.29 

17.  It  seems  scarcely  needful  to  repeat  what  has  been  so  often 
declared  by  the  courts,  that  railways  have  the  exclusive  right  to 
possession  of  their  roadway,  and  to  exclude  all  intrusions  thereon, 
w  bother  from  persons  or  structures.30 

15  S.  T.  &  A.  Railw.  Co.  in  re,  10  Jur.  (N.  S.)  614. 

86  Senior  v.  Met.  Railw.  Co.,  2  II.  &  C.  258  ;  Cameron  v.  Charing  Cross  Railw. 
Co.,  16  C.  B.  (X.  S.)  430;  overruled  in  Exch.  Chamber,  Ricket  v.  Metropolitan 
Railw.  Co.,  5  B.  &  S.  149;  s.  c.  13  W.  R.  455,  where  the  proposition  of  the 
text  i>  established.  But  see  s.  c.  L.  R.  2  Ho.  Lds.  175,  where  the  doctrine  of 
the  court  below  is  not  sustained. 

'''■  Wood  v.  Stourbridge  Railw.  Co.,  16  C.  B.  (X.  S.)  222.  See  also  Boothby 
v.  Androscoggin  &  K.  Railw.  Co.,  51  Me.  318. 

-  Macon  &  Western  Railw.  Co.  v.  McConnell,  27  Ga.  481. 
w  Cunningham  v.  Rome  Railw.  Co.,  27  Ga.  499. 

-  B  lilw.  Co.  v.  Ilummell,  44  Penn.  St.  375;  Harvey  v.  Lackawanna  &  B. 
Railw.  Co.,  47  id.  428. 

[*345] 


§83. 


DIFFERENT   ESTATES   PROTECTED. 


361 


SECTION    XXI. 


Different  Estates  Protected. 


1.  Tenant's  good-will  and  chance  of  renewal 

protected. 

2.  Tenants  entitled  to  compensation  for  change 

of  location. 

3.  Church   property   in   England,  how  esti- 

mated. 

4.  Tenant  not  entitled  to  sue,  as  owner  of  pri- 

vate way. 

5.  Heir  should  sue  for  compensation. 


6.  Lessor  and  lessee  both  entitled  to  compen- 

sation. 

7.  Bight  of  way ,  from  necessity,  protected. 

8.  Mill-owner  entitled  to  action  for  obstruct- 

ing water. 

9.  Occupier  of  land  entitled  to  compensation. 

10.  Tenant,  without  power  of  alienation,  for- 

feits his  estate,  by  license  to  company. 

11.  Damages  not  transferable  by  deed  of  land, 

after  they  accrue. 


§  83.  1.  The  English  statute  provides  for  the  protection  of  the 
interests  of  lessees  in  certain  cases.1  And  lessees  from  year  to 
year  have  recovered,  for  the  good-will  of  the  premises,  which  would 
have  been  valuable  as  between  the  tenant  and  a  purchaser,  al- 
though it  was  not  a  legal  interest  as  against  the  landlord.2  But 
not  when  the  tenancy  was  from  year  to  year,  determinable  at  three 
months'  notice,  with  a  stipulation  against  underletting  without 
leave.2  So,  too,  an  under-tenant  is  entitled  to  compensation  for 
good-will.3  But  in  a  lease  for  fourteen  years,  with  covenant  to 
yield  up  the  premises  at  the  end  of  the  term,  with  all  fixtures  and 
improvements,  where  the  company  suffered  the  lease  to  expire  and 
*  then  turned  out  the  tenant,  held  that  he  was  entitled  to  compen- 
sation for  good-will  and  the  chance  of  beneficial  renewal,  but  not 
for  improvements,  but  nevertheless  these  might  be  considered  by 
the  jury  in  estimating  the  chance  of  beneficial  renewal.4 

1  8  &  9  Vict.  c.  18,  §§  119  to  122,  and  8  &  9  Vict.  c.  20,  §  43. 

2  Ex  parte  Farlow,  2B.&  Ad.  341;  The  Matter  of  Palmer  v.  Hungerford 
Market,  9  Ad.  &  Ellis,  463. 

3  Rex  v.  The  Hungerford  Market,  4  B.  &  Ad.  592. 

4  Rex  v.  The  Hungerford  Market,  4  B.  &  Ad.  592.  But  the  case  of  Rex  v. 
Liv.  &  Manchester  Railw.,  4  Ad.  &  Ellis,  650,  seems  to  treat  a  similar  estate  as 
absolutely  gone,  at  the  end  of  the  term,  and  the  company  bound  to  make  no 
compensation.  But  where  the  company  stipulated  with  a  tenant,  having  a  doubt- 
ful right  of  renewal,  to  compensate  him  for  the  same  on  his  establishing  the  right, 
and  subsequently  became  themselves  the  owner  of  the  reversion,  it  was  held  the 
tenant  might  maintain  a  bill  in  equity  for  the  declaration  of  his  rights  as  to 
renewal  and  compensation  therefor.     Bogg  v.  Midland  Railw.,  L.  R.  4  Eq.  310. 

[*346] 


EMINENT   DOMAIN.  PART  III. 

2.  The  loss  which  a  brewer  sustained  by  having  to  give  up  his 
business  till  he  could  procure  other  premises,  suitable  for  carrying 
it  on,  was  held  a  proper  subject  of  compensation  under  a  similar 
Btatute.6  Where  the  act  required  tenants  from  year  to  year  to 
give  up  premises  to  the  company,  upon  six  months'  notice  to  quit, 
without  reference  to  the  time  when  their  term  began,  but  allowed 
them  compensation,  if  required  to  leave  before  their  term  expired, 
it  was  held,  that  when  the  six  months'  notice  required  the  tenant 
to  leave  at  the  end  of  his  term,  he  was  not  entitled  to  compensa- 
tion.' Bui  where  a  tenant  gives  up  premises  under  a  six  months' 
notice  from  a  railway  company,  when  he  is  entitled  to  compensa- 
tion, without  demanding  it  of  the  company,  he  is  still  bound  to  pay 
full  rent  to  his  landlord.7 

3.  Church  property  in  England  is  estimated  with  reference  to 
the  cost  of  a  new  site  and  similar  erections,  to  be  fixed  by*  agree- 
ment between  the  company  and  the  diocesan  and  archbishop  of 
the  province.  But  after  this  appropriation  of  the  site  of  a  church 
to  secular  purposes,  the  rector  is  entitled  to  have  his  interest  in 
the  premises  connected  therewith  estimated  at  its  value  for  secular 
uses.8 

4.  Where  the  charter  of  a  company  imposed  a  penalty  upon 
them  for  any  obstruction  or  interruption  of  a  road,  and  in  the  case 
of  a  private  road  gave  the  right  to  recover  the  penalty  to  the  owner 
of  the  road,  it  was  held,  that  the  tenant  of  the  farm  over  which 
the  road  passed  could  not  sue  for  the  penalty.9 

*5.  Where  land  of  a  deceased  person  is  taken  for  a  railway,  the 
heir  and  not  the  administrator  is  entitled  to  the  damages  for  such 
taking,  and  to  prosecute  for  the  recovery  thereof,  although  the 
administrator  had  previously  represented  the  estate  insolvent,  and 
afterwards  obtained  a  license  to  sell  the  real  estate  for  the  pay- 
ment of  debts.10 

6.  And  a  tenant,  whose  lease  began  before,  and  who  was  in 
possession  at  the  time  an  injury  was  done,  is  entitled  to  recover 

s  Jubb  v.  Hull  Dock  Co.,  9  Q.  B.  443. 

«  The  Queen  v.  London  &  Southampton  Railw.  Co.,  10  Ad.  &  El.  3 ;  s.  c.  1 
Railw.  C.  717. 

U  tnwrinjht  v.  Ramsdeni,  5  M.  &  W.  602;  s.  c.  1  Railw.  C..714. 
*  Hilcoat  v.  The  Archbishops  of  Canterbury  &  York,  10  C.  B.  327. 
linson  v.  Newcastle  &  Darlington  Railw.,  1  Car.  &  Kir.  546. 
Boynton  v.  Peterboro  &  Shirley  Railw.,  4  Cush.  467. 
[*347] 


§  83.  DIFFERENT   ESTATES   PROTECTED.  863 

damages  for  an  injury  sustained  by  him,  in  building  a  turnpike 
road.11  But  the  lessor  and  lessee  are  each  entitled  to  recover 
compensation  for  the  damage  sustained  by  them  respectively.12 

7.  And  where  the  plaintiff  had  no  access  to  his  land  except  over 
the  land  of  his  grantor,  it  was  held,  that  he  had  a  way,  by  neces- 
sity, across  such  laud,  and  that  he  was  entitled  to  maintain  an 
action  against  a  railway  company  for  obstructing  it.13 

8.  So.  also  where  the  free  flow  of  water  from  a  saw-mill  is 
obstructed  by  the  erection  of  a  railway  bridge  below  the  mill,  the 
company  are  liable  to  the  owner  of  the  mill  in  an  action  of  tort.14 
But  they  are  not  liable  for  any  increased  expense  thereby  oc- 
casioned to  the  mill-owner,  in  getting  logs  up  the  stream  to  his 
mill,  whether  the  stream  be  navigable  for  boats  and  rafts,  or  not.14 

9.  Where  the  statute  gives  remedy  against  all  persons  inter- 
ested, the  occupant  of  land  is  liable  to  be  affected  by  the  proceed- 
ings, and  a  similar  construction  will  prevail  where  the  remedy  is 
given  to  all  interested.15  It  seems  indispensable  to  the  asserting 
of  any  valid  claim  for  land  damages  that  the  claimant  prove  the 
character  and  extent  of  his  title.16  And  it  is  here  said  that  pos- 
session alone  will  not  be  *  regarded  as  ground  of  presumption  of 
title  in  fee.  And  where  the  entire  fee  in  the  land  is  condemned  to 
the  use  of  the  railway,  and  the  money  paid  into  court,  it  must  be 
apportioned  to  the  several  owners  of  different  interests  in  the  land, 
as  nearly  as  possible,  as  if  it  were  the  land  itself.  And  the  same 
result  will  follow  where  a  permanent  right  of  way  is  given  in  any 
form  to  a  perpetual  corporation.17 

11  Turnpike  Road  v.  Brosi,  22  Penn.  St.  29. 

12  Parks  v.  City  of  Boston,  15  Pick.  198.  See  also  Burbridge  v.  New  Albany 
&  S.  Railw.,  9  Ind.  546. 

13  Kimball  v.  The  Cocheco  Railw.,  7  Fost.  448. 

14  Blood  v.  Nashua  &  Lowell  Railw.,  2  Gray,  137. 

15  Gilbert  v.  Havermeyer,  2  Sandf.  506.  The  term  "owner"  in  a  statute 
requiring  compensation  by  railway  companies  for  land  taken  by  them  includes 
every  person  having  any  title  to  or  interest  in  the  land,  capable  of  being  injured 
by  the  construction  of  the  road,  and  extends  to  the  interest  of  a  lessee  or  termor. 
Bait.  &  Ohio  Railw.  v.  Thompson,  10  Md.  76;  Lewis  v.  Railw.,  11  Rich.  91; 
Sacramento  Railw.  v.  Moffatt,  7  Cal.  577. 

16  Robbins  v.  Milw.  &  Horricon  Railw.  Co.,  6  Wis.  636. 

17  Ross  v.  Adams,  4  Dutcher,  160 ;  Hagar  v.  Brainerd,  44  Vt.  294.  In  such 
case  the  party  having  an  unexpired  lease  will  only  be  entitled  to  so  much  of  the 
interest  of  the  fund  in  court  as  will  indemnify  him  for  his  loss  of  rent,  and  the 
rest  of  the  income  must  accumulate  till  the  expiration  of  the  lease.     Wootton's 

[*348] 


364  EMINENT   DOMAIN.  PART  III. 

10.  And  where  a  tenant,  who  held  the  land  for  a  term  of  years, 
with  a  si  lift  clause  against  alienation  or  subletting,  assigned  a 
small  portion  to  a  railway,  for  a  temporary  purpose,  the  company 
not  dealing  with  the  landlord,  or  giving  him  any  compensation  for 
the  use  of  the  land,  it  was  held,  that  he  was  entitled  to  maintain 
ejectment  against  the  company,  and  his  tenant,  for  the  forfeiture 
incurred  by  this  subletting.18 

11.  And  the  damages  assessed  are  payable  to  the  owner  of  the 
land  at  the  date  of  the  adjudication,  and  do  not  pass  by  deed  to 
a  subsequent  purchaser.19  And  where  the  company  gave  notice  to 
treat  for  land  to  a  tenant  at  will,  and  were  allowed  to  take  pos- 
session and  complete  their  line,  a  person  who  had  subsequently 
purchased  an  undivided  portion  of  the  land  was  not  allowed  to 
maintain  a  bill  to  restrain  the  company  from  the  use  of  the  land.20 

Estate,  Law  Rep.  1  Eq.  589.  And  all  costs  of  parties  summoned  by  the  railway 
in  order  to  receive  a  perfect  title,  must  be  paid  by  the  company.  Haynes  v. 
Barton,  L.  R.  1  Eq.  422.  And  the  costs  of  paying  money  out  of  court  for  the 
benefit  of  a  charity  must  also  be  borne  by  the  company.  Lathropp's  Charity, 
L.  EL  1  Eq.  467.  A  party  not  summoned,  although  having  knowledge  of  pro- 
lings  to  condemn  land,  is  not  bound  thereby;  but  may  have  an  action  to 
protect  his  interest.  Martin  v.  L.  Ch.  &  Dover  Railw.,  L.  R.  1  Eq.  145  ;  s.  C. 
id.  1  Ch.  Ap.  501.  See  also  London,  Br.  &  S.  C.  Railw.  in  re,  as  to  costs  of 
parties  summoned.     L.  R.  1  Ch.  Ap.  599. 

18  Legg  r.  Belfast  &  Bellamy  Railw.,  1  Irish  Law  (N.  S.),  124,  n. 

19  Lewis  v.  Wilm.  &  Manchester  Railw.,  11  Rich.  Law,  91.  But  where  a 
third  person  agreed  to  pay  the  land-owner  interest  on  the  agreed  compensation 
for  his  land  damages  "  if  said  railway  shall  be  kept  in  operation,"  his  object 
being  to  secure  the  beneficial  operation  of  the  railway  by  running  passenger  and 
freight  trains,  it  was  held  he  was  not  bound  to  perform  on  his  part,  merely 
because  the  railway  occasionally  ran  a  freight  train.  Jepherson  v.  Hunt,  2  Allen, 
417. 

20  Carnochan  v.  Norwich  &  Spalding  Railw.,  26  Beav.  169. 

[*348] 


§§  84, 85-  ARBITRATION.  —  STATUTE   OF  LIMITATIONS.  365 


♦SECTION   XXII. 
Arbitration. 

1.  Attorney,  without  express  power,  may  refer  I  2.  Award  binding,     unless    objected    to    in 
disputed  claim.  \  court. 

§  84.  1.  It  was  held  that  an  attorney,  who  had  no  authority 
under  seal,  either  to  defend  or  refer  suits,  might  nevertheless  make 
a  valid  reference  of  a  disputed  claim  against  the  company,  under  a 
judge's  order.1 

2.  And  if  the  company  object  that  the  arbitrator  awarded  upon 
matters  not  submitted,  they  should  have  applied  to  the  court  to 
revoke  the  submission,  or  set  aside  the  award,  upon  its  return  into 
court ;  but  not  having  done  so,  the  claim  being  set  up  and  enter- 
tained by  the  arbitrator,  the  award  is  binding.1  The  same  princi- 
ples would  probably  obtain  in  the  American  courts. 


SECTION    XXIII. 

Statute  of  Limitations. 


1.  General  limitation   of  actions  applies  to 

land  claim. 

2.  Filing  petition  will  not  save  bar. 


3.  Acquiescence  of  forty  years  by  land-owner, 

effect  of. 

4.  The  estoppel  will  take  effect  if  the  use  is 

clearly  adverse. 


§  85.  1.  Where  neither  the  general  statutes  nor  the  special  act 
contain  any  specific  limitation,  in  regard  to  claims  upon  railway 
companies  for  land  damages,  it  has  been  held  that  the  general 
statute  of  limitation  of  actions,  for  claims  of  a  similar  character, 
will  apply.     And  where  the  claim  was  for  an  injury  to  an  island, 

1  Faviell  v.  The  Eastern  Counties  Railw.,  2  Exch.  344.  It  is  held  generally, 
in  the  English  courts,  that  an  attorney  should  be  appointed  "under  seal  to  prose- 
cute and  defend  suits,  on  the  part  of  corporations.  Thames  Haven  Dock  & 
Railw.  Co.  v.  Hall,  5  Man.  &  G.  274 ;  Arnold  v.  The  Mayor  of  Poole,  4  id.  860. 
But  when,  by  the  incorporation  of  a  railway  company,  the  directors  were  em- 
powered to  appoint  and  displace  any  of  the  officers  of  the  company,  the  appoint- 
ment of  an  attorney,  by  the  company,  need  not  be  under  seal.     See  post,  §  141. 

[*349] 


EMINENT    DOMAIN.  PART  III. 

caused  by  the  erection  of  a  railway  bridge,  and  to  the  award  of  the 
*  viewers,  and  the  company  plead  actio  non  infra  sex  annos,  the  plea 
was  held  good.1 

•J.  Ami  where  the  statute  provides,  that  no  process  to  recover 
compensation  for  land  or  property  taken  by  a  railway  shall  "be 
sustained  unless  made  within  three  years  from  the  time  of  taking 
the  same."  a  mere  filing  of  an  application  with  the  clerk  of  the 
county  commissioners,  without  bringing  it  to  the  notice  of  the 
commissioners,  or  any  action  of  theirs  thereon  until  the  three  years 
have  elapsed,  will  not  save  the  bar  of  the  statute.2  The  land- 
owner may  also  traverse  the  right  of  the  company  to  take  the  land, 
either  originally,  for  the  location  and  construction  of  their  road  on 
the  ground  that  it  does  not  come  within  their  line,  or  the  line  of 
deviation  from  the  prescribed  route,  or  that  they  have  not  taken 
the  proper  preliminary  steps,  or  for  any  other  cause ;  or,  when  the 
company  propose  to  change  their  route,  or  to  enlarge  their  accom- 
modation works,  on  the  ground  of  having  made  their  exclusive 
election  in  one  case,  or  the  want  of  necessity  in  the  other.3 

3.  Where  the  land-owner  had  allowed  the  company,  upon  an 
appraisal  in  the  alternative  stating  both  the  value  of  the  land  and 
of  the  annual  use,  to  occupy  the  same  for  the  purposes  of  a  canal, 
for  more  than  forty  years,  paying  an  annual  sum  about  the  same 
which  had  been  awarded,  the  award  being  defective  in  law,  in 
that  no  person  had  been  made  a  party  to  the  proceeding  who 
was  authorized  to  represent  the  land-owner,  who  was  an  infant,  it 
was  held  that  this  was  no  ground  of  presuming  a  contract  on  the 
part  of  the  land-owner  to  convey  the  land  in  fee  in  consideration 
of  a  rent  charge.4  But  it  was  held  that  an  ejectment  on  the  part 
of  the  land-owner,  and  the  erection  of  a  bridge  by  him,  ought  to  be 
restrained  by  injunction,  on  the  ground  of  acquiescence,  the  com- 
pany undertaking  to  put  in  force  their  parliamentary  powers  which 
had  not  expired,  and  thus  obtain  the  land. 

4.  But  in  another  case,  where  the  party  had,  by  contract  with 
the  original  land-owner,  used  the  land  of  others  for  more  than  fifty 
years,  firsl   for  a  tram-way  and  subsequently  for  a  railway  in  a 

ter  v.  The  Cumberland  Valley  Railw.,  23  Penn.  St.  371. 
-  <  iharlea  River  Railw.  v.  County  Commissioners  of  Norfolk,  7  Gray,  389. 

3  South  Carolina  Railw.  v.  Blake,  9  Rich.  228;  ante,  §  72;  post,  §  105, 
n.  14. 

4  Somerset  Canal  Co.  v.  Harcourt,  2  De  G.  &  J.  596. 

[*350] 


§  85.  STATUTE   OP   LIMITATIONS.  367 

*  different  place  across  the  same  land,  it  was  held  that  the  present 
land-owner  was  concluded  by  the  agreement,  and  that  the  change 
of  one  place  for  another  would  not  defeat  the  estoppel.5  All  the 
party  can  claim  is,  to  have  damages  under  the  statute.5 

5  Mold  v.  Wheatcroft,  29  Law  J.  Ch.  c.  11 ;  s.  c.  27  Beav.  510. 

[*351] 


3G3 


EMINENT    DOMAIN. 


PART  III. 


♦CHAPTER    XII. 

REMEDIES   BY   LAND-OWNERS   UNDER   THE   ENGLISH    STATUTE. 
SECTION    I. 


Company  bound  to  purchase  the  whole  of  a  House,  etc. 


1.  /    •    company  to  take  the  accessories  with 

the  house. 

2.  /•'  '  i he  owner  has  an  election  in  regard  to 

that. 

3.  A  deposit  of  the  appraised  value  means  the 

value  of  all  the  company  are  bound  to 
take. 

4.  Company  bound  to  take  all  of  which  they 


take  part,  and  pay  special  damage  be- 
sides. 

5.  Where  company  desire  part,  not  compella- 

ble to  take  whole  unless  they  persist  in 
taking  part. 

6.  Land  separated  from  house  by  highway  not 

part  of  premises. 


§  86.  1.  By  the  English  statute,1  railway  companies  are  bound 
to  purchase  the  whole  of  a  house  and  lands  adjoining,  if  required, 
when  they  give  notice  to  take  part ;  and  also  if  the  house  or  the 
principal  portion  of  it  be  within  fifty  feet  of  the  railway,  and  de- 
teriorated by  it.  The  act  includes  house,  garden,  yard,  warehouse, 
building,  or  manufactory  ;  but  it  was  considered  that  this  did  not 
extend  to  a  lumber-yard.2  Under  a  similar  provision,  in  a  special 
charter,  it  was  held,  that  the  company  were  not  bound  to  take  the 
entire  premises,  where  the  principal  dwelling-house  only  was  within 
the  prescribed  limit.3 

2.  It  has  been  considered  that  this  statute  gave  an  option  to  the 
land-owner,  whether  the  company  should  take  the  whole  or  part 
of  the  house,  so  situated.4     And  in  this  last  case  it  was   held, 

1  8  &  9  Vict.  c.  18,  §  92. 

'  Si  one  v.  Commercial  Railw.,  9  Simons,  621 ;  s.  c.  1  Railw.  C.  375 ;  Reg.  v. 
Sheriff  of  Middlesex,  3  Railw.  C.  396.  But  it  will  include  an  open  space  in  front 
of  a  public  bouse  used  by  guests  for  the  purpose  of  access  to  tbe  house  with 
vehicles,  tbe  land  baving  passed  with  the  lease  of  the  house  for  many  years. 
Mason  r.  London,  Chatham,  &  Dover  Railw.,  L.  R.  6  Eq.  101. 

;  Reg.  v.  L.  &  Greenw.  Railw.  Co.,  32  B.  166;  s.  c.  3  Railw.  C.  138. 

*  Sparrow  v.  The  Oxford,  Worcester,  &  Wolverhampton  Railw.  32  De  G., 
M.  &  G.  94;  8.  c.  13  Eng.  L.  &  Eq.  33.  By  Lord  Cranworth  and  Sir  Knight 
[*352] 


§  86.  COMPANY  BOUND    TO    PURCHASE   WHOLE   OF   HOUSE.  369 

*  that  a  narrow  strip  of  land  adjoining  an  iron  and  tin-plate  fac- 
tory, which  had  been  used  as  a  place  of  deposit  for  rubbish,  and 
over  which  a  person  had  a  right  of  way,  was  such  a  part  of  the 
manufactory,  that  the  company  were  bound  to  take  the  whole.4 

3.  And  the  statute  requiring  a  deposit  of  the  appraised  value 
of  the  land  taken  by  a  railway  company,  before  entering  upon  the 
same,  imports  the  value  of  the  whole  premises,  in  all  cases  where 
the  company  give  notice  of  requiring  part  and  the  owner  elects, 
according  to  the  terms  of  the  statute,  that  they  shall  take  the 
whole.5 

Bruce,  L.  J.  See  also  Barker  v.  N.  Staffordshire  Railw.,  2  De  G.  &  S.  55 ;  s.  c. 
5  Railw.  C.  401,  419,  where  Lord  Cottenham,  Chancellor,  intimates  an  opinion, 
that  certain  parcels  of  land  (and  a  brine-pit  and  steam-engine  upon  one  of  them) 
adjoining  salt-works,  are  not  a  part  of  the  manufactory.  But  his  lordship  gives 
a  very  satisfactory  reason  for  denying  the  aid  of  the  court,  viz.,  "That  a  party 
having  known  his  rights,  and  having  had  his  claim,  in  respect  of  them,  disposed 
of  [upon  the  original  bill,  and  by  leave  of  court  then  filing  a  supplemental  bill] 
if  he  then  raises  a  new  ground  of  equity,  does  not  present  his  case  in  a  form  to 
entitle  him  to  ask  for  the  extraordinary  interposition  of  this  court." 

In  Sparrow  v.  The  Oxford,  &c.  Railw.  Co.,  2  De  G.,  M.  &  G.  94;  s.  c.  13 
Eng.  L.  &  Eq.  33,  Lord  Cranwortli,  L.  J.,  made  some  very  significant  suggestions 
in  regard  to  the  rights  of  land-owners  to  compensation.  "The  only  remaining 
question,"  said  his  lordship,  "  is  one  which  has  been  raised  now  for  the  first  time, 
namely,  that  if  they  cannot  take  the  land,  they  are  now  entitled  to  burrow  under 
it,  as  it  were  to  make  a  tunnel,  which  they  say  they  are  able  and  willing  to  do, 
without  taking  or  touching  any  part  of  the  surface.  It  was  argued  in  this  way, 
'  Suppose  the  manufactory  were  at  the  top  of  a  hill,  and  you  were  burrowing 
under  it,  at  the  distance  of  a  thousand  feet,  are  they  then  taking  part  of  the 
manufactory  ? '  I  do  not  feel  myself  called  upon  to  answer  that  question,  but  if 
I  were,  I  rather  believe  you  are,  on  the  principle  of  the  maxim,  Cujus  est  solum, 
ejus  est  usque  ad  inferos.  Do  you  mean  to  say,  that  if  you  are  an  inch  below  the 
surface,  you  would  not  be  taking  any  part  of  the  manufactory  ?  I  am  inclined  to 
think  that,  however  deep  below  [the  tunnel  was  made],  it  would  be  within  the 
enactment.  If  that  has  been  a  casus  omissus,  I  think  it  ought  to  be  construed  in 
a  way  most  favorable  to  those  who  are  seeking  to  defend  their  property  from 
invasion."  In  the  case  of  Ramsden  v.  The  Manchester  S.  Junction  Railw., 
1  Exch.  723,  it  was  determined,  that  a  railway  company  could  not  tunnel,  even  a 
highway,  without  first  making  compensation  to  the  owner  of  the  freehold,  under 
the  Land  Clauses  Act.  The  company  are  not  bound  to  take  property  more  than 
fifty  feet  from  the  centre  line  of  the  road,  unless  it  is  incapable  of  separation. 
Queen  v.  London  &  G.  Railw.,  3  Ad.  &  Ell.  (N.  S.)  106. 

5  Underwood  v.  The  Bedford  &  Cambridge  Railw.,  11  C.  B.  (N.  S.)  442; 
s.  c.  7  Jur.  (N.  S.)  941 ;  Dadson  v.  East  Kent  Railw.,  ib.  So  an  offer  of 
compensation  to  the  party  must  be  distinct  from  costs.  Balls  v.  Metropolitan 
Board  of  Works,  L.  R.,  1  Q.  B.  337. 

vol.  i.  24  [*353] 


370     REMEDIES   BY   LAND-OWNERS   UNDER   ENGLISH   STATUTE.    PART  III. 

1.  Where  three  adjoining  houses  had  gardens  laid  out  from  the 
*  plat  of  land  upon  which  they  were  built  for  the  accommodation 
of  each,  and  a  railway  company  proposed  to  take  a  strip  of  land 
from  the  gardens  attached  to  two  of  the  houses  upon  the  side 
most  remote  from  the  houses,  and  the  owner  elected  to  have  the 
company  take  the  houses,  which  they  declined  to  do,  but  took 
the  land  :  the  company  were  held  liable  to  purchase  the  whole 
of  the  two  houses,  the  gardens  being  part  of  the  houses  to  which 
they  were  attached,  and  also  to  make  compensation  for  any  injury 
sustained  in  respect  of  the  other  house.6 

5.  It  has  also  been  determined,  that  the  railway,  after  giving 
notice  to  purchase  part  of  a  house,  &c,  and  being  required  by  the 
owner  to  take  the  whole,  cannot  be  compelled  by  mandamus  to 
take  the  whole,  as  the  act  of  parliament  imposes  no  such  obligation. 
The  statute  is  intended  to  protect  the  owner  from  being  compelled 
to  sell  a  part,  but  does  not  compel  a  company,  wanting  a  part 
only,  to  take  the  whole,  if  they  chose  to  waive  their  claim  alto- 
gether, and  the  mandamus  having  claimed  the  whole,  could  not  go 
for  a  part  only.7 

6  Cole  v.  Crystal  Palace  Railw.,  5  Jur.  (N.  S.)  1114;  s.  c.  27  Beav.  242. 
The  term  "  bouse"  in  the  statute  includes  all  that  -would  pass  by  the  same  word 
in  an  ordinary  conveyance.  Hewson  v.  London  &  South  Western  Railw.  Co., 
8  W.  K.  -tG7  ;  Ferguson  v.  Brighton  &  South  Coast  Railw.,' 9  L.  T.  (N.  S.)  134 ; 
s.  c.  30  Beav.  100.  It  will  therefore  embrace  all  of  a  series  of  gardens  connected 
l>y  a  gravel  walk  passing  through  the  walls  of  the  different  gardens.  lb.  See 
King  v.  Wycombe  Railw.,  6  Jur.  (N.  S.)  239;  s.  c.  28  Beav.  104.  A  hospital 
may  compel  a  railway  company  to  take  the  whole  of  the  hospital  if  they  insist 
upon  taking  one  wing  used  for  the  same  purposes  as  the  rest  of  the  building, 
although  connected  only  by  a  wall.  St.  Thomas  Hospital  v.  Charing-Cross 
Railw.  Co.,  1  Johns.  &  H.  400;  s.  c.  7  Jur.  (JST.  S.)  256.  Houses  in  the  course 
of  construction  come  within  the  statute.  Alexander  v.  Crystal  Palace  Railw.,  8 
Jur.  (X.  S.)  833;  s.  c.  30  Beav.  656.  See  also  Chambers  v.  London,  Chatham, 
&  Dover  Railw.,  8  L.  Times  (N.  S.),  235.  Land  used  for  purposes  of  pastime, 
as  archery  and  dancing,  but  chierly  as  a  pasture  for  cows,  although  important  to 
the  enjoyment  of  the  house,  is  not  so  a  part  of  the  same  premises  as  to  require 

company  to  take  it  with  the  house  or  the  house  with  that.  Pulling  v.  London, 
(  hatham,  &  Dover  Railw.  Co.,  10  Jur.  (N.  S.)  665;  s.  c.  33  Beav.  644. 

7  Queen  V.  The  London  &  South  Western  Railw.  Co.,  12  Q.  B.  775;  s.  c.  5 
Railw.  '  •  669.  The  remark  of  Lord  Denman,  in  closing  his  opinion  in  this  case, 
i-  applicable  to  similar  cases  everywhere.  "  We  have  to  lament  the  waste  of 
lime  that  has  occurred,  from  the  obscurity  thrown  about  the  case  by  the  super- 
fluous matter  foisted  into  the  record." 

[*354J 


§87. 


THE   COMPANY   BOUND   TO    TAKE   INTERSECTED   LANDS. 


371 


6.  The  plaintiff  was  an  owner  in  fee  of  a  house  on  one  side  of 
*  a  high  road,  where  he  had  resided  for  a  great  number  of  years. 
Some  years  ago  he  purchased  six  acres  of  land  on  the  other  side 
of  the  road,  upon  part  of  which  there  were  built  three  houses. 
Two  of  the  houses  were  let  to  tenants,  the  third  house  was  occu- 
pied by  the  plaintiff's  groom,  and  other  servants;  the  rest  of  the 
land  which  lay  beyond  the  houses  was  used  by  the  plaintiff  for 
pasturing  his  cows,  horses,  &c.  The  plaintiff  alleged  that  the  six 
acres  were  indispensable  to  the  enjoyment  of  the  house  by  him. 
A  railway  wanting  part  of  the  six  acres  which  lay  about  250  yards 
from  the  plaintiff's  house,  the  plaintiff  sought  to  compel  the  com- 
pany to  take  the  house  also,  on  the  ground  that  the  land  formed 
part  of  his  house,  within  the  92d  section  of  the  Act.  But  the 
motion  for  injunction  having  been  denied  by  the  Vice-Chancellor, 
Wood,  his  judgment  was  affirmed  in  the  Court  of  Chancery  Appeal, 
Lord  Justice  Knight  Bruce  dubitante.8 


SECTION    II. 

The   Company   compellable  to   take  intersected   Lands,  and   the 

Owner  to  sell. 


1.    When  less  than  half  an  acre  remains  on 
either  side,  company  must  buy. 


2.  Owner  must  sell  where  land  of  less  value 

than  railroad  crossing. 

3,  4.    Word  "  town  "  how  construed. 


§  87.  1.  By  the  93d  section  of  the  English  statute  the  com- 
pany is  compellable  to  take  lands,  not  in  a  town,  or  built  upon, 
which  are  so  intersected  by  the  works  as  to  leave  either  on 
one  or  both  sides  a  less  quantity  of  land  than  half  a  statute 
acre. 

2.  And  by  section  94,  if  the  quantity  of  land  left  on  either  side 
of  the  works 1  is  of  less  value  than  a  railway  crossing,  and  the 

8  Steele  v.  Midland  Railw.,  Law  Rep.  1  Ch.  275;  s.  c.  12  Jur.  (N.  S.)  218. 

1  8  and  9  Vict.  c.  18,  §§  93  and  94  ;  Falls  v.  Belfast  &  B.  Railw.,  11  Irish  L.  R. 
184.  This  statute,  it  was  held,  does  not  apply  to  lands  in  a  town  or  built  upon. 
Marriage  v.  The  Eastern  Co.'s  R.  and  the  London  and  B.  Railw.,  30  Law  Times, 
264 ;  s.  c.  9  Ho.  Lds.  32,  where  the  judgment  of  the  Excheq.  Chamber,  2  H.  &  N. 
649,  is  reversed,  and  the  statute  held  to  apply  to  all  intersected  lands,  whether 

[*355] 


372     REMEDIES    BY   LAND-OWNERS    UNDER    ENGLISH    STATUTE.    PART  III. 

*  owner  have  not  other  lands  adjoining,  and  require  the  promoters 
to  make  the  crossing,  the  owner  may  be  compelled  to  sell  the 
land. 

3.  It  was  held,  that  the  term  "  town,"  in  a  turnpike  act,  imported 
a  "  collection  of  houses,"  and  that  the  extent  of  the  town  was  to 
be  determined  by  the  popular  sense  of  the  term,  and  to  include  all 
that  might  fairly  be  said  to  dwell  together.2 

4.  And  in  another  case,  it  is  said,  that  the  term  includes  all  the 
houses,  which  are  continuous,  and  that  this  includes  all  open 
spaces  occupied,  as  mere  accessories  to  such  houses.3 


SECTION    III. 


Effect  of  Notice  to  Treat  for  the  purchase  of  Land. 


1.  Important  question  under  statute  of  limita- 

tions. 

2.  Company  compelled  to  summon  jury. 

3.  Ejectment  not  maintainable  against  com- 

pany. 

4.  Powers  to  purchase  or  enter,  how  saved. 


5.  Subsequent  purchasers   affected  by  notice 

to  treat  as  the  inception  of  title. 

6.  But  the  notice  may  be  loithdruwn  before 

any  thing  is  done  under  it. 

7.  Not  indispensable  to  declare  the  use,  or  that 

it  is  for  station,  and  another  company  to 
participate  in  use. 


§  88.  1.  Inasmuch  as  the  time  for  taking  land,  by  the  English 
statute,  is  limited  to  three  years,  an  important  question  has 
arisen  there,  in  regard  to  the  effect  of  instituting  proceedings, 
by  giving  notice  to  treat,  within  the  time  limited,  although  not 
in  season  to  have  the  matter  brought  to  a  close  before  its  expira- 
tion. 

2.  This  having  been  done,  and  the  land-owner  having  intimated 
his  desire  that  a  jury  should  be  summoned,  but  the  company 
taking  no  further  steps,  the  question  was  whether  a  writ  of  man- 
damus would  lie,  after  the  prescribed  period  had  elapsed,  to  compel 
the  company  to  proceed  to  summon  a  jury.  It  was  determined  in 
the  affirmative.1 

in  a  town  or  not.  A  land-owner  is  not  entitled  to  the  costs  of  an  inquiry  whether 
the  land  is  of  less  value  than  the  cost  of  crossing.  Cobb  v.  Mid  Wales  Railw., 
Law  Rep.  1  Q.  B.  U>. 

>  Reg.  v.  ( iottle,  3  Eng.  L.  &  Eq.  474 ;  s.  c.  16  Q.  B.  412. 

3  Elliott  v.  South  Devon  Railw.,  2  Exch.  725.  See  also  Carington  v.  Wycomb 
Railw.,  Law  Rep.  2  Eq.  825. 

1  The  Queen  v.  Birmingham  &  Oxford  Junction  Railw.,  15  Q.  B.  634;  s.  c. 
[*356] 


§  88.        NOTICE  TO  TREAT  FOR  PURCHASE  OP  LAND.        373 

*  3.  So,  too,  where  the  company  have  taken  possession  of  land, 
by  depositing  the  value  of  the  land  in  the  Bank  of  England,  and 
executing  a  bond  to  the  party  to  secure  payment,  subject  to 
future  proceedings,  as  they  may  do,  and  where  the  company 
took  no  further  steps  to  ascertain  the  sum  to  be  paid  by  them, 
as  compensation,  until  the  time  limited  for  exercising  their  com- 
pulsory powers  had  expired,  it  was  held,  that  having  rightfully 
entered  upon  the  land  before  the  expiration  of  the  prescribed 
period,  an  ejectment  could  not  be  maintained  against  them  after 
that  period.  The  proper  remedy  for  the  land-owner  is  by  writ  of 
mandamus.2 

4.  So,  also,  if  they  have  made  the  deposit,  and  given  a  bond  for 
the  payment  of  the  price,  under  this  same  section,3  a  day  before 

6  Railw.  C.  628;  Birmingham  &  Oxford  June.  Railw.  Co.  v.  Regina,  1  El.  & 
Bl.  293;  s.  c.  4  Eng.  L.  &  Eq.  276,  where  the  judgment  of  the  Q.  B.  was  fully 
affirmed  in  the  Exchequer  Chamber.  The  court  say,  "  The  notice  to  treat  is  an 
inchoate  purchase,  and  after  that  has  been  given,  in  due  time,  it  is  competent  for 
the  land-owner  to  compel  the  completion  of  the  purchase."  But  where  an  annu- 
itant, having  power  to  enter  upon  land  and  distrain  for  his  security,  was  served 
with  notice  by  a  railway  company  of  their  intention  to  purchase,  and  the  com- 
pany subsequently  purchased  the  property  of  a  prior  mortgagee,  who  had  a  power 
of  sale,  it  was  held  the  annuitant  could  not,  in  equity,  compel  the  company  to  pay 
the  owners  of  the  annuity,  he  alleging  no  fraud  or  other  improper  conduct  on  the 
part  of  the  company.  Hill  v.  Great  Northern  Railw.,  5  De  G.,  M.  &  G.  66; 
s.  c.  27  Eng.  L.  &  Eq.  198,  reversing  the  decision  of  one  of  the  Vice-Chancellors 
in  s.  c.  23  Eng.  L.  &  Eq.  565.  See  also  Met.  Railw.  Co.  v.  Woodhouse,  11 
Jur.  (N.  S.)  296.  If  the  land-owner  lie  by  an  unreasonable  time,  he  cannot 
maintain  mandamus,  or  where  the  company  abandon  their  notice  to  take  part  of 
land  upon  the  owner  serving  notice  to  take  the  whole.  Quicke  ex  parte,  13  W. 
R.  94. 

*  Doe  d.  Armistead  v.  The  N.  Staffordshire  Railw.,  16  Q.  B.  526;  s.  c.  4 
Eng.  L.  &  Eq.  216.  The  expression  "  deviation,"  which  appears  in  the  acts  of 
parliament  and  in  the  English  cases,  is  here  determined  to  import  the  distance 
from  the  line  of  railway  upon  the  parliamentary  plans  which  are  the  basis  of  the 
charter,  and  one  hundred  yards  "deviation"  is  commonly  allowed,  in  the  acts. 
Worsley  v.  The  South  Devon  Railw.  Co.,  16  Q.  B.  539;  s.  c.  id.  223.  See  also 
Lind  v.  Isle  of  Wight  Ferry  Co.,  7  L.  T.  (N.  S.)  416.  The  courts  will  restrain 
the  company  within  the  limits  of  deviation  allowed  by  the  act,  even  where  the 
plans  deposited  contain  no  limitation.  Higley  v.  Lan.  &  Y.  Railw.  Co.,  4  De 
G.,  M.  &  G.  352.  The  line  of  deviation  controls  the  right  rather  than  the 
delineations  on  the  plan.  Weld  v.  So.  Western  Railw.  Co.,  32  Beav.  340; 
Knapp  v.  London,  Chatham  &  Dover  Railw.,  2  H.  &  C.  212. 

3  The  Marquis  of  Salisbury  v.  The  Great  Northern  Railw.  Co.,  17  Q.  B.  810; 
s.  C.  10  Eng.  L.  &  Eq.  344.     The  position  is  here  distinctly  assumed,  that  after 

[*357] 


374     REMEDIES    HY    LAND-OWNERS    UNDER    ENGLISH    STATUTE.    PART  III. 

the  efflux  of  the  time  limited,  although  they  had  not  entered  upon 
*  the  land,  their  powers  to  purchase  or  enter  upon  the  lands  are 
sa\. 

\  1 1 - i  where  a  railway  company  gave  notice  to  a  tenant  at  will 
to  take  part  of  the  lands,  and  the  company  was  allowed  to  take 
possession  and  complete  their  line,  and  afterwards  a  person,  who 
had,  subsequently  to  the  notice,  purchased  one-ninth  of  the  land, 
filed  a  bill  merely  praying  an  injunction  to  restrain  the  railway 
company  from  entering  upon,  continuing  in  possession  of,  or 
otherwise  interfering  with  the  land,  the  bill  was  dismisssd  with 
costs.4 

6.  But  it  seems  to  be  considered  that  mere  notice  by  a  railway 
company  of  an  intention  to  take  land,  may  be  withdrawn  if  done 
before  the  company  have  taken  possession  of  the  land,  or  done 
any  thing  in  pursuance  of  the  notice.5  And  this  is  especially 
true  where  the  land  consists  of  a  house  and  appurtenances,  and 
the  notice  only  extends  to  taking  a  part  of  the  land,  and  the 
owner  requires  the  company  to  take  the  whole  land  with  all  the 
buildings. 

7.  It  is  no  objection  to  a  notice  to  take  land  for  the  use  of  a 
railway  company  that  it  does  not  declare  the  use  for  which  it  is 

the  notice  to  treat,  the  parties  stand  in  the  relation  of  vendor  and  purchaser,  and 
the  company  are  not  at  liberty  to  recede.  All  the  after  proceedings  are  merely 
for  the  purpose  of  ascertaining  the  price  of  the  land.  Sparrow  v.  Oxford  & 
Worcester  Railw.  Co.,  9Hare,436;  s.  c.  12Eng.  L.  &Eq.  249.  The  owner  of  the 
land,  upon  which  a  railway  has  been  constructed  by  the  consent  of  such  owner, 
still  retains  liis  lien  upon  the  land  for  the  price.  Pell  v.  N.  &  B.  Railw.,  16  W. 
R.  1077  :  9.  C.  17  id.  506  ;  Eyton  v.  D.  B.  &  C.  Railw.,  id.  546. 

4  (  arnochan  v.  Norwich  &  Spalding  Railw.,  26  Beav.  169.  But  a  notice  to 
treat,  in  order  to  become  the  inception  of  title,  must  be  followed  up  within  a 

>nablc  time,  or  it  will  be  regarded  as  abandoned.     Hedges  v.  The  Metro- 
politan Railw.  Co.,  28  Beav.  109  ;  s.  c.  6  Jur.  (N.  S.)  1275. 

5  King  v.  The  Wycombe  Railw.  Co.,  6  Jur.  (N.  S.)  239;  s.  c.  28  Beav.  104; 
Gardner  o.  I  haring-<  Iross  Railw.  Co.,  2  J.  &  H.  248;  s.  c.  8  Jur.  (N.  S.)  151. 
Where  the  company  agree  verbally  to  take  the  whole  of  a  house  and  land,  that 
is  a  valid  waiver  of  notice  under  the  statute,  and  will  be  enforced  in  equity. 
Binney  v.  Hammersmith  &  City  Railw.  Co.,  9  Jur.  (N.  S.)  773.  Tenant  coming 
into  poss<  ssion  of  land  after  notice  to  treat,  and  before  proceedings  taken,  is 
entitled  to  renewal  of  notice,  so  as  to  make  him  a  party.  Carters.  Great  Eastern 
R.  <  ...  9  dm-.  (  \.  S.)  618.  And  a  notice  to  take  land  will  not  enable  the  com- 
pany to  proceed  and  complete  title  after  their  powers  for  compulsory  purchase 
have  "  wed.  Richmond  v.  Xorth  London  Railw.,  Law  Rep.  5  Eq.  352.  But  see 
post,  §  89,  pi.  2,  n.  4. 

[*358] 


589. 


REQUISITES    OF    THE    NOTICE    TO    TREAT. 


375 


proposed  to  be  taken ;  nor  will  it  affect  the  title  of  the  company 
that  it  is  taken  for  a  station  for  the  joint  use  of  that  and  another 
company,  which  latter  company  could  not  have  taken  the  land  for 
their  own  use  alone.6 


♦SECTION  IV. 


Requisites   of  the  Notice  to   Treat. 


Notice  to  treat  must,  in  terms  or  by  refer- 
ence, accurately  describe  land. 

After  notice  to  treat  company  compellable  to 
purchase.  Company  cannot  retract  after 
giving  notice  to  treat. 


3.  Neio  notices  given  for  additional  lands. 

4.  Power  to  take  land  not  lost  by  former  un- 

warranted attempt. 

5.  Lands  may  be  taken  for  branch  railway. 

6.  Effect  of  notice  in  case  of  a  public  park. 


§  89.  1.  As  by  the  English  statute  the  notice  to  treat  is  made 
the  act  of  purchase,  it  is  of  the  first  importance  that  it  should 
describe  the  lands  accurately.  But  even  where  the  notice  was  in- 
definite, if  it  be  accompanied  with  a  plan  which  shows  the  very 
land  proposed  to  be  taken,  it  will  be  sufficient ; 1  or  reference  may 
be  made  to  the  parliamentary  plan.1  The  company  can  only  claim 
to  use  what  their  notice  and  the  annexed  plan  show  clearly  was 
submitted  to  the  appraisers  to  value.2 

2.  It  was  held  long  ago  in  the  English  courts,  under  similar 
statutes  for  taking  land  by  compulsion,  that  the  notice  to  treat 
constituted  the  act  of  purchase,  and  that  after  giving  it  there 
remained  no  longer  to  the  company  any  power  to  retract,  and  they 
will  be  compelled  by  mandamus  to  complete  the  purchase.3  Nor 
can  the  company  after  requiring  the  tenant  to  give  up  to  them  the 

6  Wood  v.  Epsom  &  L.  Railw.  Co.,  8  C.  B.  (N.  S.)  731. 

1  Sims  v.  The  Commercial  Railw.,  1  Railw.  C.  431;  Hodges  on  Railways, 
197. 

2  Kemp  v.  The  London  &  Br.  Railw.  Co.,  1  Railw.  C.  495. 

3  The  King  v.  Hungerford  Market  Co.,  4  B.  &  Ad.  327;  Same  v.  Commis- 
sioners of  Manchester,  id.  332,  n.  ;  Doo  v.  The  London  &  Cr.  Railw.,  1  Railw. 
C.  257;  Burkinshaw  v.  Birin.  &  Ox.  June.  Railw.  Co.,  5  Exch.  475;  s.  C.  4 
Eng.  L.  &  Eq.  489 ;  Ed.  &  Dundee  Railw.  Co.  v.  Leven,  1  Macq.  House  of 
Lords  Cases,  284;  Stone  v.  The  Commercial  Railw.  Co.,  9  Sim.  621;  s.  c.  1 
Railw.  ('.  375.  When  variance  from  notice  will  not  vitiate  precept,  see  Walker 
v.  The  London  &  Bl.  Railw.  Co.,  3  Ad.  &  El.  (N.  S.)  744;  Reg.  v.  York  & 
North  Midland  R.  Co.,  1  El.  &  Bl.  178,  858  ;  Reg.  v.  Ambergate  &  C.  R.  Co.,  id. 
372.      See  ante,  §  88,  pi.  C,  and  notes. 

[*359] 


876     REMEDIES    BY   LAND-OWNERS   UNDER   ENGLISH   STATUTE.    PART  III. 

jsion  of  his  land  before  the  expiration  of  his  term,  afterwards 
Burrender  the  same,  especially  where  damage  has  accrued  to  the 
premises  in  consequence  of  the  company  taking  possession.  They 
must  pay  money  into  court.4 

And  where  the  company  had  given  notice  to  take  twenty 
perches  of  land,  they  cannot  subsequently  give  notice  to  restrict 
the  land  to  one  perch.6  But  the  company,  having  issued  one 
notice,  may  issue  a  second,  requiring  additional  lands.6  They 
are  at  liberty,  by  new  notices  from  time  to  time,  to  take  such 
additional  lands  as  the  progress  of  the  work  shows  will  be 
requisite. 

4.  Nor  will  the  company  be  deprived  of  the  power  to  take  land 
for  the  necessary  use  of  the  works,  when  the  emergency  arises,  by 
having  previously  attempted  to  take  it  for  other  purposes  not  war- 
ranted by  their  act.7 

5.  And  the  company,  having  opened  their  main  line  for  travel, 
but  not  completed  the  stations  and  works,  are  at  liberty  to  take 
any  lands  within  the  limits  of  deviation  for  a  branch  railway.8 

6.  But  it  was  held,  that  where  the  Commissioners  of  Woods  and 

4  Pope  v.  Great  Eastern  Raihv.,  Law  Rep.  3  Eq.  171.  Notice  to  treat  is  not 
equivalent  to  requiring  the  tenant  to  surrender  the  possession.  Queen  v.  Stone, 
Law  Rep.  1  Q.  15.  529.  But  where  the  land-owner  is  served  by  the  company 
with  notice  that  it  purposes  to  take  land  of  such  owner,  at  the  end  of  six  months, 
under  the  statute,  this  will  bind  the  company  to  proceed  and  give  notice  to  treat 
and  take  the  land ;  and  if  the  company  delay  beyond  the  time  fixed  by  the  stat- 
ute, the  land-owner  will  be  entitled  to  substantial  damages,  and  to  have  the  con- 
tract carried  into  effect  by  mandamus.  Morgan  v.  The  Met.  Railw.,  Law  Rep. 
4  C.  P.  97,  affirming  s.  c.  Law  Rep.  3  C.  P.  553;  17  W.  R.  261.  In  such 
cases  the  courts  of  equity  will  decree  specific  performance,  especially  where  the 
defendants  had  been  let  into  possession  of  the  land  on  the  faith  of  the  contract. 
Harding  v.  Met.  Railw.,  7  Ch.  App.  154.  But  the  court  will  not  restrain  the 
company  from  running  trains  during  the  pendency  of  an  order  of  sale  to  enforce 
a  vendor's  lien.  Lycett  ».  Staff.  &  Uttoxeter  Railw.,  Law  Rep.  13  Eq.  261; 
The  Earl  of  St.  Germans  v.  Crystal  Palace  Railw.,  11  id.  568,  was  not  followed 
here. 

6  Tawney  v.  Lynn  &  Ely  Railw.  Co.,  4  Railw.  C.  615. 

•  Stamps  v.  Bir.  Wolv.  &  Stour  Valley  Railw.,  6  Railw.  C.  123  ;  s.  c.  7  Hare, 
251. 

7  W<  I'!'  ''.  Manchester  &  Leeds  Railw.,  1  Railw.  C.  576  ;  Simpson  v.  Lancaster 
&  Carlisle  Railw.,  L5  Sim.  580;  s.  c.  4  Railw.  C.  625;  Williams  v.  South 
Wal<^  Railw.  <'...,  13  Jur.  443;  s.  c.  3  De  G.  &  S.  354. 

"  Sadd  r.  The  Maldon,  W.  &  Braintree  Railw.  Co.,  6  Exch.  143;  s.  c.  2 
Eng.  L.  &  Eq.  110. 

[*360] 


§  90.      NOTICE   MAY   BE   WAIVED   BY   THE   PARTY   NEGOTIATING.         377 

Forests  gave  notice  of  taking  lands  for  a  public  park,  as  they  were 
acting  in  a  public  capacity,  the  notice  given  by  them  did  not  con- 
stitute a  quasi  contract,  enforcible  by  mandamus.9 


SECTION    V. 

TJie  Notice  may  be  Waived,  by  the  Party  entering  into  Negotiation. 

1.  Notice  must  be  set  forth  in  proceedings.        I  3.   Certiorari  denied  where  party  has  suffered 

2.  Agreement  to  waive  operates  as  estoppel.  no  injury. 

§  90.  1.  It  is  a  general  rule,  in  regard  to  all  summary  and  in- 
ferior jurisdictions,  that  the  basis  of  their  jurisdiction  must  appear 
upon  the  face  of  the  proceedings.1  Hence  in  proceedings  to  take 
land  in  invitum,  under  a  notice  to  treat,  the  notice  being  regarded 
*  as  essential  to  the  jurisdiction,  it  has  more  generally  been  held 
indispensable  to  the  jurisdiction  that  it  should  be  set  forth  upon 
the  proceedings.1 

2.  But  where  the  land-owner  enters  into  negotiation  with  the 
company,  and  agrees  to  waive  the  notice,  he  is  afterwards  estopped 
from  taking  the  objection,  that  he  never  received  notice.2  And 
it  was  held,  that  the  party  whose  duty  it  was  to  give  the  notice, 
and  who  was  shown  by  the  returns  to  have  appeared  before  the 
jury,  cannot  object  to  the  inquisition  upon  the  ground  that  it  did 
not  disclose  a  proper  notice  to  treat.3 

3.  In  another  case,  where  application  was  made  to  the  King's 
Bench  to  issue  a  certiorari,  to  bring  up  and  quash  an  inquisition 
for  land  damages  in  a  railway  case,  on  the  ground  of  some  alleged 
defect,  the  court  say,  the  granting  the  writ  is  matter  of  discretion, 
though  there  are  fatal  defects  on  the  face  of  the  proceedings  which 
.it  is  sought  to  bring  up ;  and  that  it  is  almost  an  invariable  rule 
to  deny  the  writ,  where  it  appears  the  party  has  suffered  no  injury 
or  has  assented  to  the  proceedings  below.4 

9  Queen  v.  The  Comm.  of  Woods  &  Forests  {Ex  parte  Budge),  15  Ad.  & 
Ellis  (N.  S.),  761. 

1  Rex  v.  Bagsbaw,  7  T.  R.  363  ;  Rex  v.  Mayor  of  Liverpool,  4  Burrow,  2244  ; 
Rex  v.  Trustees  of  the  Norwich  Roads,  5  Ad.  &  Ellis,  563. 

*  Reg.  v.  The  Committee  for  the  South  Holland  Drainage,  8  Ad.  &  Ellis,  429. 

3  Reg.  v.  The  Trustees  of  Swansea  Harbor,  8  Ad.  &  Ellis,  439. 

4  Reg.  v.  The  Manchester  &  Leeds  Raihy.  Co.,  8  Ad.  &  Ellis,  413. 

[*361] 


378     REMEDIES    BY    LAND-0WNEE8   UNDER   ENGLI8B    STATUTE.    PART  III. 


SECTION     VI. 


Title  of  the  Claimant  must  be  distinctly  stated. 


■mint's  reply  to  notice  should  bt   clear 
and  anew  a 
_•     l     i  ./  bad,  ir/iich  does  not  state  claim- 
ant's 


3.  Where  lands  are  held  by  receiver  or  com- 
mission for  a  lunatic.  Expression  "fee- 
simple  in  possession." 

n.  3.  Analogous  American  cases. 


§91.  1.  In  reply  to  a  notice  to  treat,  the  claimant  may  state  the 
particulars  of  his  claim  and  proceed  to  treat.  In  this  case  the 
statement  should  give  a  clear  description  of  the  claimant's  interest 
in  the  land,  as  a  defect  here  is  liable  to  affect  the  validity  of  the 
after  proceedings. 

2.  In  one  case  where  the  claimant's  answer  to  the  notice  to 
treat  stated  that,  as  trustees  under  a  will,  they  claimed  an  estate 
in  copyhold,  and  a  certain  sum  as  compensation  for  their  interest 
in  the  lands,  and  appointed  an  arbitrator,  and  the  other  party 
*  appointing  one,  and  an  umpire  being  agreed  upon,  he  awarded  a 
certain  sum  as  the  value  to  be  paid  to  the  trustees,  "  for  the  pur- 
chase of  the  fee-simple,  in  possession,  free  from  all  incum- 
brances ; "  the  company  applying  to  set  aside  the  award,  upon 
the  ground  that  other  persons  claimed  an  interest  in  the  lands, 
the  court  held  the  award  bad,  for  not  finding  the  interest  of  the 
claimants  in  the  land,  or  that  they  had  a  fee-simple  which  it  ap- 
praised.  But  the  court  did  not  set  the  award  aside,  but  left 
the  company  to  dispute  it,  when  it  should  be  attempted  to  be 
enforced.1 

3.  If  the  lands  are  in  possession  of  a  receiver,  or  the  committee 
of  a  lunatic,  a  special  application  should  be  made  to  the  Court  of 
Chancery.2  The  claimant  cannot  object  that  the  award  describes 
the  laud  as  a  fee-simple  in  possession,  whereas,  the  land  is  in  pos- 

ision  of  a  tenant.  Lord  Denman,  C.  J.,  in  giving  judgment 
says,  •'  The  answer  is  that  such  assumption,  if  really  made,  is  in 

North  Staffordshire  Railw.  Co.  v.  Landor,  2  Exch.  235. 
■  In   re  Taylor  and  York  X.  Midland  Railw.,  1  Hall  &  Twells,  432;  s.  c.  6 
Railw.  Ca8.  711.      In  this  case  the  Lord  Chancellor  said,   "All  the  world  ought 
to  be  aware,  that,  the  sanction  of  the  Lord  Chancellor  is  necessary  to  be  obtained 
in  the  6rst  instance,  in  cases  like  the  present." 

[*362] 


§  91.  TITLE   OF   CLAIMANT   MUST   BE   DISTINCTLY   STATED.  379 

favor  of  the  claimant,  and  therefore  no  matter  of  complaint  for 
him.  But  it  does  not  appear  clearly  that  any  such  assumption 
was  made.  The  expression  '  fee-simple  in  possession,'  in  the 
claim,  is  used  in  contradistinction  to  fee-simple  in  reversion  or 
remainder."  s 

3  Bradshaw  and  the  East  &  W.  I.  Docks  and  Birmingham  J.  Railw.  Co.,  12 
Ad.  &  Ellis  (N.  S.),  562.  The  vendor  of  land  to  a  railway  company  docs  not 
waive  his  lien  for  damages  by  accepting  a  certificate  of  deposit  made  by  the 
cashier  of  the  company  for  the  purchase-money,  the  money  not  being  paid 
when  called  for.  Mims  v.  Macon  &  W.  Railw.  Co.,  3  Kelley,  333.  Where  a 
company  received  a  grant  of  certain  salt  mines,  subject  to  a  condition  which 
they  did  not  comply  with,  but  retained  the  lands  for  a  different  purpose,  and 
afterwards,  when  the  period  for  performing  the  condition  had  expired,  a  general 
grant  of  all  unoccupied  salt  lands  in  the  state,  necessary  to  use,  for  constructing 
a  railway,  was  made  to  a  railway  company,  who  proceeded  and  occupied  the 
lands  above-named,  it  was  held  that  the  first  grantors  had  no  interest  or  title 
enabling  them  to  maintain  an  action  for  damages.  "They  had  the  lands  set 
apart  to  their  use,  for  making  salt,  and  had  no  right  to  enter  upon  and  occupy 
them  for  any  other  purpose,"  are  the  words  of  the  court.  Parmelee  v.  Oswego 
&  Syracuse  Railw.,  7  Barb.  599. 

The  statute  of  Pennsylvania  gives  the  right  to  construct  lateral  railways  over 
intervening  lands,  to  the  owner  of  lands,  mills,  cpiarries,  coal,  or  other  mines, 
lime-kilns,  or  other  real  estate,  in  the  vicinity  of  any  railway,  canal,  or  slack- 
water  navigation.  It  was  held,  that  one  who  was  in  possession  of  the  land,  on 
which  a  coal-mine  was,  at  the  commencement  of  the  proceeding  to  recover  land 
damages,  and  who  had  erected  a  two-story  dwelling-house  upon  the  land, 
was  an  owner  of  the  coal-mine  within  the  act.  Shoenberger  v.  Mulhollan, 
8  Penn.  St.  134.  It  is  sufficient  in  such  case  that  the  petition  be  signed 
by  the  lessee  and  agent  of  the  owner.  Harvey  v.  Lloyd,  3  Penn.  St.  331. 
It  is  considered  necessary  that  the  mortgagee  of  land  should  become  a  party 
to  the  proceedings  for  condemning  or  granting  land  to  a  railway,  in  order  to 
give  good  title  to  the  company.  Stewart  v.  Raymond  Railw.,  7  S.  &  M.  5G8. 
Or  that  he  should  give  his  consent,  in  writing,  to  the  proceeding  taken  by  the 
mortgagor  in  the  case.  Meacham  v.  Fitchburg  Railw.,  4  Cush.  291  ;  s.  c.  1  Am. 
Railw.  Cas.  584;  s.  c.  1  Redf.  Am.  Railw.  Cases,  276.  But  the  mortgagor  may 
recover  the  full  amount  of  damage,  without  regard  to  mortgages.  Breed  v.  Eastern 
Railw.,  5  Gray,  470.  Where  the  state  held  land  for  a  state  prison,  and  granted  the 
charter  of  a  railway,  in  the  usual  form,  authorizing  the  company  to  locate  their 
road,  so  that  it  might  pass  over  the  land  of  the  state,  so  held,  but  without  any  ex- 
pression in  the  act  of  a  design  to  aid  the  company  in  their  undertaking,  it  was  held 
the  state  might  recover  damages  for  the  land  taken.  The  court  say,  "  The  inquiry 
relates  solely  to  the  property  of  the  Commonwealth,  which  it  holds  in  fee  in  its 
capacity  as  a  body  politic.  It  appears  to  us  the  question  is  purely  one  of  inten- 
tion.'1—  "We  think  if  the  legislature  had  intended  to  aid  the  enterprise  by  an 
appropriation  of  money,  land,  or  other  means,  —  such  aid  being  unusual,  —  the 
purpose  to  do  so  would  have  been  in  some  way  expressed."  Commonwealth  v. 
Boston  &  Maine  Railw.,  3  Cush.  25;  s.  c.  1  Am.  Railw.  Cas.  482,  496,  497. 

[*362] 


380    REMEDIES    BY    LAND-OWNERS   UNDER   ENGLISH    STATUTE.    PART  III. 

♦SECTION    VII. 
The  (  'I dim  of  the  Land-owner  must  correspond  with  the  Notice. 

8  92.  In  one  case  the  claim  of  the  land-owner  described  more 
land  than  the  notice  to  treat,  being  intersected  land,  less  than  one- 
half  acre,  which  the  company  are  bound  to  take  if  so  required. 
But  the  claim  did  not  properly  designate  the  portion  which,  it  was 
claimed,  the  company  should  take  under  their  notice,  and  that 
which  they  were  required  to  take,  as  intersected  land.  The 
umpire  received  evidence  as  to  the  value  of  the  intersected  land, 
and  awarded  one  entire  sum  as  compensation  for  the  whole.  Held 
that  the  award  was  bad,  there  being  no  valid  submission  as  to 
intersected  lands.1 

1  The  N.  Staffordshire  Railw.  v.  Wood,  2  Exch.  244. 

[*363] 


§93. 


LANDS   TAKEN   OR   INJURIOUSLY   AFFECTED. 


381 


*CHAPTER     XIII. 

ENTRY   UPON   LANDS   BEFORE   COMPENSATION   IS    ASSESSED. 

SECTION    I. 

Lands  taken   or  Injuriously  Affected,   without   having  previously 
made   Compensation  to  the  Parties. 


1.  No  entry  under  English  statutes  ivithout 

previous  compensation,  except  for  pre- 
liminary survey. 

2.  Legal  remedies  against  company  offending. 

3.  What  acts  constitute  taking  possessioii  un- 

der statute. 


4.  Company  may  enter  with  land-owner' s  con- 

sent after  agreement  for  arbitration. 

5.  Bond  may  be  given  in  certain  cases. 

6.  Company  restrained  from  using  land,  un- 

til price  paid  even  after  line  in  opera- 
tion.    But  this  rule  dissented  from. 


§  93.  1 .  The  eighty-fourth  section  of  the  English  statute,  The 
Lands  Clauses,  &c,  provides,  that  no  entry  shall  be  made  upon 
any  lands  by  the  company  until  compensation  shall  have  been 
made  under  the  act,  or  deposited  in  the  Bank  of  England,  except 
for  the  purpose  of  preliminary  surveys,  and  probing  or  boring 
to  ascertain  the  nature  of  the  soil,  which  may  be  done  by  giving 
notice,  not  more  than  fourteen  days  or  less  than  three  days,  and 
making  compensation  for  any  damage  thereby  occasioned  to  the 
owners  or  occupiers  of  such  lands. 

2.  It  has  been  considered  that  if  the  company  enter  upon  lands 
without  complying  with  the  requisitions  of  the  statute,  they  are 
liable  in  trespass  or  ejectment.1  And  in  some  cases  an  injunction 
will  be  granted.  But  where  the  company  entered  to  make  pre- 
liminary surveys,  without  giving  the  requisite  notice,  the  court 
refused  to  order  the  injunction,  but  reserved  the  question  of 
costs.2 

1  Doe  d.  Hutchinson  v.  The  Manchester,  Bury,  and  Rosendale  Railw.,  14  M. 
&  W.  687;  Graham  v.  Columbus  &  Ind.  Railw.,  27  Ind.  260.  The  legislature 
in  this  country  may  give  railway  companies  the  right  to  enter  upon  lands  for  the 
purpose  of  preliminary  surveys  without  compensation.  Fox  v.  Western  Pacific 
Railw.,  Sl'Gal.  538. 

*  Fooks  v.  The  Wilts,  Somerset,  and  Weymouth  Railw.,  5  Hare,  199;  8.  c. 

[*364] 


382  BNTM    BEFORE   COMPENSATION   IS   ASSESSED.  PART  III. 

And  where  the  entry  was  regularly  made  upon  the  land,  for 
preliminary  surveys,  and  afterwards  the  contractors,  without  the 
knowledge  of  the  corporation,  but  with  the  consent  of  the  occupy- 
ing tenants,  brought  some  of  their  wagons  and  rails  and  other 
implements  upon  the  land,  but  did  not  commence  the  works  or  do 
any  damage,  and  this  was  without  the  assent  of  the  owner,  and 
his  agent  thereupon  filed  a  bill  to  obtain  an  injunction  against 
taking  possession  of  the  lands  until  they  had  complied  with  the 
statute,  the  Yioe-Chancellor  said,  that  although  the  company  were 
bound  by  the  acts  of  their  contractors,  the  acts  done  were  not  a 
taking  possession  within  the  meaning  of  the  statute,  and  that  the 
bill  was  improperly  filed.3 

4.  But  where  the  company  agreed  with  the  land-owner  that  the 
question  of  compensation  should  be  settled  by  arbitration,  and 
thereupon  entered  upon  the  land,  by  consent  of  the  owner,  and  the 
arbitrator  made  an  award,  which  became  the  subject  of  dispute, 
and  the  owner  thereupon  gave  the  company  notice  to  quit,  and 
brought  ejectment,  it  was  held  he  could  not  recover,  although  the 
company  had  not  tendered  the  money  awarded,  or  a  conveyance, 
but  that  the  owner's  remedy  was  to  proceed  upon  the  award.4 
The  notice  to  quit  under  the  circumstances  did  not  make  the 
company  trespassers. 

5.  By  the  eighty-fifth  section,  if  the  company  find  it  necessary 
to  enter  upon  land,  for  the  purpose  of  carrying  forward  their 
works,  before  the  amount  of  compensation  can  be  settled,  they  may 
deposit  in  the  bank  the  amount  claimed,  or  in  other  cases  the 
appraisal,  and  also  give  the  party  a  bond  with  surety,  to  be  ap- 
proved by  two  justices  in  a  penal  sum  equal  to  the  amount  so 
deposited,  conditioned  for  the  payment  or  deposit  of  the  amount 
finally  fixed  as  the  ultimate  value  and  interest  thereon,  and  then 
take  possession  of  the  land  and  proceed  with  their  works.     The 

4  Railw.  C.  210.  In  this  case  the  injunction  was  denied,  chiefly  upon  the 
ground  that  the  alleged  trespass  was  complete  before  the  application.  The 
court  intimate  that  if  the  company  should  attempt  to  proceed  further  it  might  be 
proper  to  restrain  them  by  injunction.  The  point  of  the  company  being  in  the 
wrong,  is  distinctly  recognized  by  the  court. 

3  Standisb  o.  .Mayor  of  Liverpool,  1  Drewry,  1  ;  s.  c.  15  Eng.  L.  &  Eq.  255. 

4  Doe  ■/.  Hudson  v.  The  Leeds  and  Bradford  Railw.,  16  Q.  B.  796;  s.  c.  6 
i.  L.  &  Eq.  283.     The  decision  here  goes  chiefly  upon  the  ground  of  the 

consent  of  the  land-owner  to  the  entry  of  the  company,  and  to  refer  the  com- 
pensation to  an  arbitrator. 

[*365] 


§  93.  LANDS    TAKEN    OR   INJURIOUSLY    AFFECTED.  383 

company  can  obtain  their  money  so  soon  as  the  condition  of  the 
bond  has  been  complied  with.  But  the  vendor  must  join  in 
the  petition  for  the  money  to  be  paid  the  company,  or  else  it  must 
*  be  shown  that  he  has  been  served  with  a  copy  of  the  petition.5 
It  does  not  invalidate  the  bond,  if  it  bear  date  before  the  date  of 
the  valuation.*3 

6.  Where  a  railway  company  took  land  for  the  construction  of 
their  road,  without  paying  the  price,  and  after  completing  their 
works  leased  the  line  to  another  company,  it  was  held,  upon  a  bill 
against  both  companies,  to  compel  the  payment  of  the  land  dam- 
ages, that  a  decree  must  pass  for  the  plaintiff  for  payment  by  the 
first  company,  and  in  default  that  both  companies  be  restrained 
from  using  the  land.7     But  where  the  price  of  lands  so  taken  had 

5  Ex  parte  South  Wales  Railw.  Co.,  6  Railw.  C.  151.  But  in  ex  parte  The 
Eastern  Counties  Railw.  Co.,  5  Railw.  C.  210,  the  money  was  ordered  to  be  paid 
to  the  company  upon  affidavits  showing  the  claim  settled.  The  land-owner  has 
no  lien  upon  the  money  deposited  for  costs,  but  the  company  are  entitled  to  the 
money  upon  payment  of  the  sum  finally  settled  for  the  value  of  the  land.  The 
Great  Northern  Railw.  Co.  ex  parte,  5  Railw.  Cases,  269 ;  London  &  South  W. 
R.  ex  parte  Stevens,  5  Railw.  C.  437.  The  bond  must  be  given  in  the  very  terms 
of  the  statute.  Hosking  v.  Phillips,  3  Exch.  168,  opinion  of  Parke,  B.  And  it 
will  make  no  difference  that  the  obligee  is  a  gainer  by  the  deviation  from  the 
statute.  Poynder  v.  Great  Northern  Railw.  Co.,  16  Sim.  3  ;  s.  c.  5  Railw.  C.  196. 
But  where  the  company  choose  to  treat  for  the  claimant's  title  only,  it  is  suffi- 
cient if  the  bond  follow  the  statute,  so  far  as  it  applies  to  that  particular  case. 
Willey  v.  Southeastern  Railw.  Co.,  1  Hall  &  Twells,  56  ;  s.  c.  6  Railw.  Cas.  100. 
Opinion  of  Lord  Chancellor,  107,  108.  If  the  company  enter  by  consent  of  the 
tenant,  and  do  permanent  damage  to  the  land,  the  owner  may  nevertheless  obtain 
an  injunction  and  compel  them  to  make  a  deposit  and  give  a  bond  as  required  by 
the  statute.  Armstrong  v.  Waterford  &  Limerick  Railw.  Co.,  10  Irish  Eq.  60. 
If  there  is  a  mortgage  upon  land,  the  company  must  treat  with  the  mortgagee, 
or  provide  for  the  expense  of  reinvestment  for  his  benefit,  or  their  entry  will 
be  regarded  as  unlawful.  Ranken  v.  East  and  West  India  Docks  &  Bir.  J. 
Railw.,  12  Beavan,  298;  19  L.  J.  Ch.  153.  Under  the  general  statutes,  in  many 
of  the  American  states,  where  there  are  conflicting  claims  to  the  land  required 
by  a  railway  company,  the  company  are  required  to  make  application  to  the 
Court  of  Chancery,  and  deposit  the  money,  in  bank,  subject  to  the  final  order  of 
that  court.  In  such  case  it  has  been  considered  that  the  company  had  no  inter- 
est in  the  controversy,  after  depositing  the  money  for  the  price  of  the  land. 
Haswell  v.  Vermont  Central  Railw.,  23  Vt.  228. 

0  Stamps  v.  Birmingham,  Wolverhampton,  &  Stour  Valley  Railw.,  6  Railw. 
C.  123. 

7  Cozens  v.  Bognor  Railw.  Law  Rep.,  1  Ch.  App.  594,  Turner,  L.  J.,  dis- 
senting.    But  see  ante,  §  73,  n.  7. 

[*36G] 


384 


ENTRY   BEFORE   COMPENSATION   IS   ASSESSED. 


PART  III. 


been  Becured  by  bond,  which  had  not  been  paid,  it  was  held  the 
company,  after  having  constructed  their  road,  could  not  be  re- 
strained *by  injunction  from  continuing  to  occupy  the  land  until 
they  paid  the  purchase-money.8  And  this,  it  seems  to  us,  is  the 
correct  view  of  the  matter,  that  the  land-owner  by  accepting  secu- 
rity, or  even  the  promise  of  the  company,  for  land  damages,  and 
allowing  them  to  apply  the  land  to  the  purposes  of  constructing 
their  works,  so  essentially  converted  its  nature,  as  to  lose  all  lien 
upon  it  for  the  price.9 


SECTION     II. 

The  proceedings   requisite   to  enable   the    Company  to   enter  upon 

Land. 


1.  Provisional  valuation  under  English  stat- 
utes. 
'._'.   /      Hilarities  in  proceedings. 
3.  Penalty  for  irregular  entry  upon  lands. 


4.  Entry  after  verdict  estimating  damages, 

but  before  judgment. 

5.  Mode  of  assessing  damages  provided  in 

charter    not    superseded  by   subsequent 
general  railway  act. 


§94.  1.  In  some  cases  specified  in  the  English  statute,  it  is 
necessary  to  have  a  provisional  valuation  of  land,  by  a  surveyor 
appointed  by  two  justices,  to  determine  the  amount  of  the  security 
to  be  given  before  the  entry  of  the  company  upon  the  laud. 
Where  in  such  cases  the  justices  appointed  a  surveyor,  who  had 
all  along  acted  for  the  company,  to  appraise  the  value,  it  was 
held  no»  sufficient  reason  to  interfere,  by  injunction,  but  the  court 
reprobated  such  a  practice.  The  court  also  declined  to  interfere, 
by  injunction,  on  the  ground  that  the  sureties  on  the  bond  were 
the  company's  solicitors,  and  were  upon  similar  bonds  to  a  large 
amount.1 


"  Pell  v.  Northampton  &  Banbury  Railw.  Law  Rep.  2  Ch.  App.  100 ;  s.  c. 
12  Jur.  (N.  S)  897.  The  lessee  is  a  proper  party  in  such  case.  Bishop  of 
Winchester  v.  Midhants  Railw.  Law  Rep.  5  Eq.  19. 

g  7:;.  and  notes ;  §  65,  pi.  6,  and  cases  cited. 

1  Langham  v.  Great  Northern  Railw.,  1  De  Gex  &  Smale,  486  ;  s  c.  5  Railw. 
C.  265,  266.  This  case  was  in  favor  of  five  plaintiffs,  three  tenants  in  common, 
and  two  devisees  in  trust  for  the  sale  of  the  lands,  and  it  was  queried,  whether 
there  was  not  a  misjoinder. 

[*367] 


§  94.  PROCEEDINGS   REQUISITE.  385 

2.  In  the  same  case  it  was  considered  that  depositing  money 
and  executing  a  bond  to  tenants  in  common,  in  their  joint  names, 
was  irregular.1  It  was  held  that  the  proceedings  under  the  85th  sec- 
tion of  the  English  act,  to  obtain  possession  of  the  land  before  the 
*  amount  of  compensation  is  settled,  may  be  ex  parte,  and  altogether 
without  notice.2 

8.  The  English  statute  subjects  the  company  to  a  penalty  for 
entering  upon  lands  before  taking  the  steps  required  by  the 
statute,  but  provides,  that  the  penalty  shall  not  attach  to  any  com- 
pany, who  have  bona  fide  done  what  they  deemed  to  be  a  com- 
pliance with  the  statute.3 

4.  If  one  enter  upon  lands  after  verdict  estimating  damages, 
but  before  judgment  on  the  verdict,  he  is  liable  in  trespass,  but 
only  for  the  actual  injury,  and  not  for  vindictive  or  exemplary 
damages.* 

5.  It  has  often  been  made  a  question  in  this  country,  where 
the  charter  of  a  railway  provides  one  mode  of  assessing  land 
damages,  and  a  subsequent  general  railway  act  provides  a  dif- 
ferent mode,  which  the  company  are  bound  to  pursue.  It  has 
been  held  the  company  might  st,ill  pursue  the  course  pointed  out 
in  their  charter.5 

3  Bridges  v.  The  Wilts,  Somerset,  and  Weymouth  Railw.,  4  Railw.  C.  622. 
This  is  a  decision  of  the  Lord  Chancellor  affirming  that  of  the  Vice-Chancellor  of 
England.  Poynder  v.  The  Great  N.  Railw.  Co.,  16  Sim.  3;  s.  c.  5  Railw.  C. 
196.  In  this  case  the  bond  was  held  to  be  informal,  for  being  made  to  be  per- 
formed "  on  demand  ;  "  the  Lord  Chancellor  refused  a  perpetual  injunction,  but 
allowed  it  till  the  bond  was  corrected. 

3  Hutchinson  v.  The  Manchester,  Bury,  and  Rossendale  Railw.  Co.,  15  M.  & 
W.  314.  Pollock,  C.  B.,  thus  lays  down  the  rule  of  construction  of  this  statute : 
"  A  penal  enactment  ought  to  be  strictly  construed,  but  a  proviso,  which  has  the 
effect  of  saving  parties  from  the  consequences  of  a  penal  enactment,  should  be 
liberally  construed. 

4  Harvey  v.  Thomas,  10  Watts,  63. 

8  Visscher  v.  Hudson  River  Railw.,  15  Barbour,  37  ;  Hudson  River  Railw.  v. 
Outwater,  3  Sandf.  Sup.  Ct.  689 ;  ante,  §  72,  n.  at  the  end. 


vol.  i.  25  [*868] 


386  ENTRY   BEFORE    COMPENSATION   IS   ASSESSED.  PART  III. 


SECTION     III. 

1/  de  of  obtaining  Compensation  under  the  Statute ,  for  Lands  taken, 
or  injuriously  affected,  where  no  Compensation  is  offered. 

1.   Claimant   may  elect   arbitration   or  jury  I  2.  Method  of  procedure, 
trial. 

$  95.  1.  Where  land  is  taken  by  the  company,  or  injuriously 
affected  by  their  works,  and  no  compensation  has  been  offered 
by  the  company,  the  claimant  may,  where  the  amount  exceeds 
*  fifty  pounds,  have  the  same  assessed,  either  by  arbitrators  or  a 
jury,  at  his  election. 

2.  If  he  desire  to  have  the  same  settled  by  arbitration,  he 
shall  give  notice  to  the  company  of  his  claim,  stating  his  interest 
in  the  land  and  the  amount  he  demands,  and  unless  the  com- 
pany within  twenty-one  days  enter  into  a  written  agreement  to 
pay  the  amount  claimed,  the  same  shall  be  settled  by  arbitration, 
in  the  manner  pointed  out  in  the  statute;  or,  if  the  party  desire 
to  have  the  same  settled  by  a  jury,  he  shall  so  state  in  his  notice 
of  claim,  and  unless  the  company  agree  to  pay  the  sum  claimed, 
in  the  manner  stated  above,  they  shall  within  twenty-one  days 
issue  their  warrant  to  the  sheriff  to  summon  a  jury  to  settle  the 
same,  in  the  manner  pointed  out  in  the  act,  and  in  default  thereof 
they  shall  be  liable  to  pay  the  amount  claimed,  to  be  recovered  in 
the  superior  courts.1 


SECTION    IV. 

The  Onus  of  carrying  forward  Proceedings. 


1.  Rests  upon  claimant  after  company  have 

tuli a  possession. 

2.  Miscellaneous  provisions. 


3.  Proceedings  cannot  be  had  unless  actual 
possession  is  taken  or  injury  done. 


i  96.    1.    It  has    been  held,    under  the    English    statutes,   that 
after  the  company  have  taken   possession  of  land,  either  by  right 
or  by  wrong,  the  onus  of  taking  the  initiative  steps  to  have  the 
1  8  &  9  Vict.  c.  18,  §  68. 

[*369] 


§  96.     THE  ONUS  OP  CARRYING  FORWARD  PROCEEDINGS.      387 

purchase-money  or  compensation  assessed,  lies  upon  the  claim- 
ant.1 It  was  considered  in  this  case,  that  the  remedy  under  the 
68th  section  2  applied  to  all  cases  where  the  company  took  posses- 
sion of  the  land  under  the  85th  section.3 

2.  But  if  questions  in  equity  are  pending,  they  must  be  dis- 
posed *  of  before  the  common-law  remedy  can  be  pursued.4  This 
was  a  case  where  the  determination  of  the  matters  pending  in 
equity  was  necessary  to  enable  the  parties  to  know  what  was 
to  be  submitted  to  the  assessors.4  In  proceedings  under  the  68th 
section,  it  is  not  necessary  for  the  company  to  give  the  claimant 
notice  of  their  issuing  a  warrant  to  the  sheriff  to  summon  a  jury, 
ten  days  before  they  issue  it,  as  is  required  in  proceedings  under 
the  other  sections.5  It  was  held,  that  if  the  claimant  recover  a 
larger  sum  than  was  offered  by  the  company,  he  is  entitled  to  re- 
cover costs  under  section  68,  as  well  as  under  other  sections.5 

3.  It  is  considered  that  the  land  must  be  actually  taken,  or 
actually  injuriously  affected  by  the  company,  before  the  claimant 
can  take  proceedings  under  section  68.  Hence  if  the  company 
give  notice  of  their  intention  to  take  lands,  but  do  not  afterwards 
actually  take  possession  or  injuriously  affect  them,  the  claimant 
can  only  proceed  by  mandamus.  It  has  been  decided  that  the 
claimant  in  such  case  cannot  make  a  demand  of  a  certain  sum, 
and  then  recover  it,  if  the  company  do  not  issue  their  warrant  to 
the  sheriff.6 

1  Adams  v.  The  London  &  Blackwall  Railw.  Co.,  2  Hall  &  Twells,  285 ;  s.  c. 
6  Railw.  C.  271,  282;  the  opinion  of  the  Lord  Chancellor  on  appeal.  It  was 
also  considered,  in  this  case,  that  if  the  company  failed  to  perform  their  duties 
in  the  proceedings,  the  more  appropriate  remedy  was  by  mandamus,  and  not  by 
application  to  the  courts  of  equity  for  decree  of  specific  performance. 

2  See  ante,  §  95. 

3  See  ante,  §§  93,  94;  Doe  d.  Armistead  v.  North  Staffordshire  Railw.  Co., 
16  Q.  B.  526 ;  s.  c.  4  Eng.  L.  &  Eq.  216. 

4  Southwestern  Railw  Co.  v.  Coward,  5  Railw.  C.  703 ;  s.  c.  1  Hall  &  Twells, 
377,  note. 

6  Railstone  v.  The  York,  Newcastle,  &  B.  Railw.  Co.,  15  Ad.  &  Ellis  (N.  S.), 
404.  This  case  is  somewhat  questioned  in  Richardson  v.  Southeastern  Railw.,  11 
C.  B.  154;  s.  c.  6  Eng.  L.  &  Eq.  426.  But  in  this  same  case,  in  error,  in  the 
Exchequer  Chamber,  9  Eng.  L.  &  Eq.  464,  the  question  as  to  costs  is  affirmed, 
and  the  court  say,  it  is  not  necessary  to  say  whether  they  consider  the  case  of 
Railstone  v.  The  York,  N.  &  B.  Railw.  Co.  sound  or  not,  as  it  does  not  neces- 
sarily affect  the  question  before  the  court. 

6  Burkinshaw  v.  Birmingham  &  Oxford  Junction  Railw.  Co.,  5  Excheq.  475. 

[*370] 


ENTRY    BEFORE    COMPENSATION    IS    ASSESSED. 


PART  III. 


SECTION    V. 

Equity  will  not  interfere  by  Injunction,  because  Lands  are  being 
Injuriously  Affected,  without  notice  to  treat,  or  previous  compen- 
sation. 


Hunt  must  wait  until  works  are  com- 

Jih  ti  (I. 

■  i  nee  of  land  will  be  greatly 
altered. 


o.  How  far  equity  interferes  where  legal  claim 

of  party  is  denied. 
4.    Where  a  special  mode  of  compensation  has 

been  agreed  upon. 


§  97.  1.  It  is  said  courts  of  equity  will  not  interfere  by  in- 
junction, because  lands  are  being  injuriously  affected  by  the 
*  company's  works,  and  no  notice  to  treat  or  previous  compensa- 
tion has  been  made,  if  it  appears  the  company  are  only  exercis- 
ing their  statutory  powers.  The  claimant  should  allow  the 
works  to  be  completed,  and  then  take  his  remedy  under  the 
statute.1 

2.  It  was  objected,  in  one  case,  that  the  company  would  be 
likely  to  greatly  alter  the  appearance  of  the  land  which  they  had 
entered  upon,  and  that  a  jury  could  not  understandingly  assess 
the  value  after  the  damages  were  sustained,  but  the  court  said 
it  was  no  ground  for  the  interference  of  a. court  of  equity.2 

3.  The  courts  in  England  hold,  that  in  this  class  of  claims  it 
is  proper  to  wait  till  the  full  extent  of  the  injury  is  known.3 
And  equity  will  not  enjoin  the  party  from  proceeding  under  the 
statute,  in  a  case  where  it  is  alleged  that  he  has  no  legal  claim 
under  the  statute,4  as   in    such   case  the    company  may   defend 

1  8  &  9  Vict.  c.  18,  §  68. 

2  Langham  v.  Great  Northern  Railw.,  1  De  G.  &  Sm.  486;  8.  c.  5  Railw.  C. 
263.  The  counsel  for  defendant  not  called  to  answer  this  portion  of  plaintiff's 
argument. 

J  Ilutton  o.  The  London  &  Southw.  Railw.  Co.,  7  Hare,  259. 

4  Bast  &  West  India  Docks  &  Bir.  J.  Railw.  Co.  v.  Gattke,  3  Mac.  &  Gor. 
155  ;  s.  c.  3  Eng.  L.  &  Eq.  59;  South  Staffordshire  Railw.  Co.  v.  Hall,  1  Sim. 
(N.  S.)  :!73;  s.  c.  id.  105.  In  this  last  case,  the  opinion  of  Lord  Cranworth 
-'•  me  to  overrule  that  of  Lord  Cottenham  in  the  London  &  N.  W.  Railw.  Co.  v. 
Smith,  1  Hall  &  Twells,  364;  s.  c.  5  Railw.  C.  716.  The  Sutton  Harbor  Im- 
provement (  o.  v.  Hitcbins,  15  Reav.  161 ;  s.  c.  9  Eng.  L.  &  Eq.  41  ;  The  London 
&  N.  \V.  Railw.  Co.  v.  Bradley,  3  Mac.  &  Gor.  366  ;  s.  c.  6  Railw.  C.  551.  See 
al»o  Monchet  v.  G.  \Y.  Railw.  Co.,  1  Railw.  C.  567.  But  see  the  case  of  L.  & 
[*371] 


§  98.  CANNOT    DETERMINE   TITLE  :    ONLY    DAMAGES.  389 

against  the  award,  and  this  seems  to  be  the  course  finally  deter- 
mined upon.  But  some  actions  at  law  have  been  brought  and 
sustained   to  try  the  right,   by  order  of  the  courts  of  equity.5 

4.  So,  too,  where  the  bill  alleges  that  the  party  has  upon 
consideration  agreed  to  receive  compensation  in  a  particular 
mode,  equity  will  enjoin  him  from  taking  proceedings  under  the 
statute.6 


* SECTION    VI. 

Sheriff's  Jury,   or  Arbitrator,   cannot   determine   the   Question   of 
Right  in  the  Claimant,  but  only  the  amount  of  Damages. 

1.  Later  English  decisions  sustain  this  view.     I  5.  Plaintiff'  will  recover  damages  assessed  if 

2,  3.  Statement  of  recent  case.  he  suffered  any  legal  injury. 
4.  In  most  American  states  assessment  is  final.  I 

§  98.  1.  There  has  been  some  contrariety  of  opinion  among 
the  English  judges  in  regard  to  the  right  of  the  company,  before 
the  sheriff's  jury,  to  raise  the  question  of  the  claimant's  right  to 
recover  any  compensation,  under  the  sixty-eighth  section,  where 
lands  are  taken  or  alleged  to  be  injuriously  affected  by  the  works 
of  the  company  ;  and  whether  the  jury  can  go  into  any  inquiry 
beyond  that  of  the  value  of  the  claimant's  interest  in  the  land. 
The  latest  decisions  upon  this  point  hold,  that  the  jury  is  confined 
to  the  question  of  the  amount  of  compensation.1 

2.  In  the  very  latest  English  case  (1857),  upon  this  subject,2  the 
judges  of  the  Court  of  Queen's  Bench  differed  in    opinion,  and 

Y.  Railw.  v.  Evans,  14  Beav.  529 ;  s.  c.  19  Eng.  L.  &  Eq.  295,  where  the  case 
of  L.  &  N.  W.  Railw.  v.  Smith  is  still  further  questioned. 

'5  Glover  v.  The  North  Staffordshire  Railw.  Co.,  16  Q.  B.  912.;  s.  c.  5  Eng. 
L.  &  Eq.  335. 

6  Duke  of  Norfolk  v.  Tennant,  9  Hare,  745 ;  s.  c.  10  Eng.  L.  &  Eq.  237. 

1  Regina  v.  Metropolitan  Comin.  of  Sewers,  1  El.  &  Bl.  694 ;  s.  c.  18  Eng. 
L.  &  Eq.  213. 

*  Regina  v.  The  London  &  Northwestern  Railw.  Co.,  3  El.  &  Bl.  443;  s.  c. 
25  Eng.  L.  &  Eq.  37.  And  the  same  rule  is  extended  to  the  finding  of  arbi- 
trators that  premises  were  injuriously  affected  by  the  narrowing  of  a  way  of 
approach,  by  means  of  the  company's  embankment;  the  award  is  not  conclusive 
upon  the  point  of  the  injurious  effect.  Beckett  v.  Midland  Railw.,  L.  R.  1  C.  P. 
241. 

[*372] 


ENTRY   BEFORE   COMPENSATION    IS    ASSESSED.  PART  III. 

delivered  opinions  seriatim.  Coleridge,  J.,  and  Lord  Campbell, 
C.  J.,  and  Wightman,  J.,  holding  that  the  jury  had  nothing  before 
them  but  the  quantum  of  damages,  and  that  whether  the  company 
declined  to  issue  iheir  warrant  to  the  sheriff,  or  did  issue  it,  in  both 
is,  the  right  to  recover  any  damage  on  account  of  a  claim  for 
the  injuriously  affecting  of  land,  was  to  be  tried  upon  the  action,  to 
recover  the  amount  assessed,  in  the  courts.  The  proceedings 
under  the  statute  were  held,  by  the  majority  of  the  court,  to  be 
merely  for  the  purpose  of  fixing  the  amount  of  the  claim.  If, 
indeed,  the  company  stood  still  upon  the  question  of  right,  they 
were  liable,  in  the  event  of  the  claimant's  recovery,  for  the  full 
amount  of  the  claim  made  ;  but  if  they  proceeded  to  a  hearing 
before  the  arbitrator  or  a  jury,  *  whichever  course  the  claimant 
should  elect,  they  might  not  only  contest  the  amount  there,  but 
the  right  of  any  recovery  in  the  action  which  the  claimant  was 
compelled  to  bring,  to  obtain  execution  against  the  company,  but 
that  it  was  improper  to  go  into  any  inquiry  before  the  arbitrator  or 
the  jury,  in  regard  to  the  right  to  recover  any  thing,  inasmuch 
as  this  tended  improperly  to  embarrass  the  mind  of  the  triers  in 
regard  to  the  damages.  And  in  this  case,  where  the  jury  went 
into  the  question  of  right,  and  determined  the  claimant  had  no 
right,  but  added,  if  he  had  such  right  his  claim  should  be  valued 
at  £150,  the  majority  of  the  court  determined  that  the  former  part 
of  the  verdict  could  not  be  rejected,  and  let  the  verdict  stand  as  a 
good  finding  of  the  sum  named,  which  last  point  seems  rather  too 
refined  for  common  apprehension,  even  after  reading  attentively  the 
elaborate  opinion  of  the  majority  of  the  court  by  Coleridge,  J. 

3.  Mr.  Justice  Erie  dissented  from  the  principal  decision  of  the 
court,  and  held  the  verdict  good  in  all  respects.  But  this  case 
must  be  regarded  as  settling  the  question  of  the  right  of  the  jury 
to  pass  upon  the  claim  beyond  its  mere  amount,  at  least  under  the 
English  statutes. 

4.  In  most  of  the  American  states  the  assessment  of  land  dam- 
ages, by  whatever  tribunal,  becomes  final,  unless  appealed  from, 
and  execution  issues  without  resort  to  a  future  action  ;  or,  if  an 
action  is  necessary  upon  awards  of  arbitrators,  this  will  not  justify 
a  re-examination  of  the  case,  either  upon  the  question  of  title  or 
amount  of  damages.  But  in  some  of  the  states,  the  proceedings 
are  similar  to  those  above-named  in  the  English  courts.3 

3  Ante,  §  72. 

[*373] 


99. 


EXTENT    OP    COMPENSATION    TO    LAND-OWNERS. 


391 


5.  And  under  the  English  statutes,  where  the  claim  is  for  in- 
juriously affecting  land,  the  plaintiff  must  recover  the  entire 
amount  of  damages  assessed  to  him  for  land  taken  by  a  railway, 
unless  the  defendant's  pleas  show  that  he  had  no  right  to  recover4 
to  anv  extent. 


*SECTION    VII. 

The  extent  of  Compensation  to  Land-owners,  and  other  Incidents  by 
the  English  Statutes. 


1.  Liberal  compensation  allowed. 

2.  Decisions  under  English  statutes. 

3.  Limit  of  period  for  estimating  damages. 


4.  Whether  claim  for  damages  passes  to  the 

devisee  or  executor. 

5.  Vendor  generally  entitled  to  damages  ac- 

cruing during  his  time. 


§  99.  1.  In  one  of  the  early  cases  1  upon  this  subject,  Lord 
Denman,  C.  J.,  said,  we  think  it  not  unfit  to  premise,  "  that  where 
such  large  powers  are  intrusted  to  a  company  to  carry  their  works 
through  so  great  an  extent  of  country,  without  the  consent  of  the 
owners  and  occupiers  of  land  through  which  they  are  to  pass,  it 
is  reasonable  and  just  that  any  injury  to  property,  which  can 
be  shown  to  arise  from  the  prosecution  of  those  works,  should 
be  fairly  compensated  to  the  party  sustaining  it."  But  this  must 
be  received  under  some  limitations.  For  it  is  siipposable,  that  pos- 
sible remote  injuries  may  accrue  to  property,  of  a  general  and 
public  character,  which  it  was  never  intended  to  compensate. 

2.  Some  points  arising  under  the  English  statute  may  be  here 
referred  to.  It  was  held  that  where  the  powers  conferred  upon  a 
canal  company  were  unlimited  as  to  time,  no  limitation  as  to  their 
exercise  could  be  assigned,  so  as  to  require  their  exercise  within  a 
reasonable  time,2  and  consequently  that  the  works  might  be  re- 
sumed at  any  period.2     Future  damages  to  accrue  to  land-owners 


4  Mortimer  v.  South  Wales  Railw.  Co.,  5  Jur.  (N.  S.)  784;  s.  c.  1  Ellis  & 
Ellis,  375. 

1  Reg.  v.  Eastern  Counties  Railw.,  2  Q.  B.,  347. 

1  Thicknesse  v.  The  Lancaster  Canal  Co.,  4  M.  &  W.  472.  Lord  Abinger, 
C.  B.,  intimates  an  opinion  here,  that  possibly,  after  a  long  delay  of  the  com- 
pany to  proceed  with  their  works,  and  the  erection  of  fences  and  buildings,  by 

[*374] 


892  ENTRY    BEFORE    COMPENSATION    IS    ASSESSED.  PART  IIT. 

cannot  be  estimated  properly 3  until  after  the  completion  of  the 
works.'  The  compensation,  when  given,  fixes  the  rights  of  the 
parties,  upon  the  basis  of  its  estimation,  as,  if  the  estimation  is  had 
upon  the  footing  of  an  entire  severance  of  the  land,  the  land-owner 
has  no  right  to  cross  the  track.4  And  where  this  did  not  *  suffi- 
ciently appear,  by  the  record  of  the  verdict,  that  not  having  been 
made,  held  that  parol  evidence  might  be  given  of  the  finding,  and 
of  the  grounds  upon  which  it  proceeded.4 

3.  Where  consequential  damages  to  existing  works,  by  the  erec- 
tion of  new  ones  are  requi  .ed  to  be  compensated,  the  period  for 
estimation  is  limited  to  the  yearly  value  of  the  works,  antecedent 
to  the  passing  of  the  act.5 

4.  The  devisee  is  entitled  to  claim  consequential  damages  and 
not  the  executor.6  But  where  one  contracted  to  sell  freehold 
estates  and  died  before  the  money  was  paid  ;  under  the  London 
Bridge  Improvement  Act,  it  was  held  the  money  should  go  to  the 
executor.7  But  the  cases  are  not  uniform  upon  this  subject,  and 
the  usual  course  seems  to  be,  that  the  money  for  consequential 
damage  goes  to  the  party  interested  in  the  inheritance,  or  else  is 
divided  according  to  the  interest  of  the  several  estates.8  In  one 
case  it  was  held,  that  the  vendee  was  entitled  to  compensation, 
which  accrued  during  the  time  of  the  vendor's  title,  but  not  liqui- 
dated till  after  the  conveyance.9 

5.  But  in  general  the  vendor  is  entitled  to  land  damages  ac- 
cruing during  his  time,  although  not  collected,  and  often  where 

the  land-owners,  in  faith  of  the  abandonment  of  the  works   by  the  company,  a 
court  of  equity  might  restrain  the  company  from   completing  their  enterprise, 
notwithstanding  the  grant  of  power  to  do  so,  by  parliament;  but  a  court  of  law 
could  do  no  such  thing,     pp.  490,  491. 
3  Lee  v.  Milner,  2  M.  &  W.  824. 

*  Manning  v.  The  Eastern  Counties  Railw.,  12  M.  &  W.  237.  But  unless  it 
appeared  by  the  record  upon  what  basis  the  assessment  was  made,  it  seems  ques- 
tionable, whether,  upon  general  principles,  oral  evidence  is  admissible  to  show 
that  basis.     Ante,  §  74,  n.  6. 

6  Manning  v.  The  Commissioner  under  the  W.  I.  Dock  Act,  9  East,  165. 

•  The  King  v.  The  Comm.  under  London  Dock  Act,  12  East,  477. 

7  Ex  parte  Hawkins,  3  Railw.  C.  505,  and  note.  No  other  party  seems  to 
have  had  a  counter  interest  in  this  case. 

8  The  Midland  Counties  Railw.  Co.  v.  Oswin,  1  Coll.  C.  C.  74,  80;  s.  c.  3 
Railw.  C.  497  ;   Danforth  v.  Smith,  23  Vt.  .247. 

9  King  v.  Witham  Nav.  Co.,  3  B.  &  Aid.  454. 

[*ilT5] 


§100. 


RIGHT   TO   TEMPORARY   USE   OF   LAND. 


393 


the  works  are  not  completed  till  after  the  conveyance.10  The  pre- 
sumption is,  if  the  jury  assess  compensation  to  one  person,  that  it 
is  only  for  his  interest  in  the  premises.11 


*SECTION    VIII. 

Right  to   Temporary  Use  of  Land  to  enable  the   Company  to  make 
Erections  upon  other  Lands. 


1.  Right  to  pass  another  railway  by  a  bridge 

gives  temporary  use  of  their  land,  but  no 
right  to  build  abutments  xipon  it. 

2.  Right  to  construct  a  bridge  across  a  canal 


gives    right    of  building  a   temporary 
bridge. 
3.  And  if  thus  erected  bona  fide  may  be  used 
for  other  purposes. 


§  100.  1.  Where  one  railway  act  gives  the  company  power  to 
pass  another  railway,  by  means  of  a  bridge,  provided  the  width 
between  the  abutments  of  the  bridge  is  not  less  than  twenty-six 
feet,  and  at  the  points  where  the  bridge  is  to  be  built,  the  land  of 
the  second  company  is  forty-seven  feet  wide,  the  first  company 
have  no  right  to  build  the  abutments  of  their  bridge  upon  the  land 
of  the  second  company,  but  having  purchased  adjoining  land  for 
that  purpose,  they  have  a  right  at  law  to  the  temporary  use  of  the 
land  of  the  second  company,  for  the  purpose  of  building,  and  this 
right  was  in  effect  secured  to  the  first  company  by  an  injunction 
out  of  chancery.1 

2.  So,  too,  where  a  railway  company  had  permission  to  carry 
their  road  over  a  canal,  by  means  of  a  bridge  of  a  given  descrip- 
tion, it  was  held  that  they  might,  as  incident  to  the  right  of 
erecting  the  bridge,  make  a  temporary  bridge  over  the  canal, 
supported  partly  on  piles  driven  into  the  bed  of  the  canal,  to 
enable  them  to  transport  earth  across  the  canal  to  build  the 
necessary  embankment,  in  the  construction  of  the  permanent 
bridge.2 

3.  And  such  temporary  bridge  having  been  erected  for  the  bona 

10  Rand  v.  Townshend,  26  Vt.  670. 

11  Rex  v.  Nottingham  Old  Waterworks,  6  Ad.  &  Ellis,  355. 

1  Great  North  of  England,  Clarence,  &  Hartlepool  Junction  Railw.  v.  The 
Clarence  Railw.,  1  Collyer,  507. 

2  London  &  Birmingham  Railw.  v.  Grand  Junction  Canal  Co.,  1  Railw.  Cas. 
224. 

[*376] 


394  ENTRY    BEFORE   COMPENSATION    IS    ASSESSED.  PART  III. 

f.l,-    purpose   of  building   the    permanent   bridge,    might  also  be 
used   for  other  purposes,  for  which  alone  it  could  not  have  been 


♦SECTION    IX. 

//■  ?i  rvations  to  Land-owners  to  build  Private  Railway  across  Public 

Railway. 

§  101.  Where  the  special  act  of  a  railway  company  provided, 
that  nothing  in  the  act  contained  shall  prevent  any  owner  or 
occupier  of  any  ground  through  which  the  railway  may  pass  from 
carrying,  at  his  or  their  own  expense,  any  railway,  or  other  road, 
any  cut,  or  canal  which  he  or  they  may  lawfully  make  in  their  own 
Ian  1.  across  the  said  main  railway,  within  the  lands  of  such  owner 
or  occupier,  it  was  held,  that  this  provision  was  not  confined  to 
the  owners  or  occupiers  of  such  land,  at  the  time,  but  was  intended 
to  apply  to  all  future  time,  so  long  as  such  principal  railway  shall 
continue,  and  extended  to  all  persons  owning  or  occupying  lands 
adjoining  the  railway,  upon  opposite  sides,  whenever  the  title  was 
acquired,  even  where  they  purchased  the  land  upon  opposite  sides 
at  different  times.1 


SECTION     X. 

Disposition  of  Superfluous  Lands. 

1  Vest  in  adjoining  owner  unless  disposed  of\  2.  Former  owner  not  excluded;  effect  of  cot- 

in  tin  years.  tage  infield. 

§  101  a.  1.  By  the  English  statute,  railways  are  required,  where 
they  have  acquired  more  lands  under  their  powers  than  are  re- 
quired  for  their  purposes,  to  sell  the  same  within  ten  years  from 

;'  Priestley  v.  The  .Manchester  &  Leeds  Railw.,  4  Yo.  &  Col.,  Ex.  03;  s.  c. 

2  Railw.  C  L34. 

1  Monkland  &  Kir.  Railw.  v.  Dixon,  1  Bell  Ap.  Cas.  317;  s.  c.  3  Railw.  C. 
•_'7:i.     The  Court  here  (II.   of  L.)  denied  an   interdict  against  such  owner  or 
occupier  prolonging  his  railway  for  the  benefit  of  any  persons  with  whom  he 
mighl  make  an  agreement  for  that  purpose. 
*377J 


§   101  (I.  DISPOSITION    OF    SUPERFLUOUS    LANDS.  395 

the  passing  of  the  act,  and  that  superfluous  lands,  then  remaining 
unsold,  should  vest  in  the  owners  of  adjoining  lands,  in  proportion 
to  the  amount  of  their  lands  respectively  adjoining  the  same. 
That  time  was  by  a  subsequent  act  extended  five  years  more.  It 
has  been  held  that  the  act  embraced  lands  the  reversion  of  which 
had  been  bought  by  the  company  ;  and  also  that  the  superfluous 
land  was  to  be  divided  among  the  owners  of  the  adjoining  property, 
*  in  proportion  to  the  frontage  of  each  ;  meaning  by  that  the  length 
of  the  line  of  contact,  without  reference  to  the  extent  of  the  land 
in  other  directions,  and  that  the  later  act  did  not  defeat  titles 
already  vested  under  the  former  act.1 

2.  It  has  also  been  held  that  the  former  owner  of  the  lands, 
from  which  they  were  severed,  is  entitled  to  share  in  the  same  un- 
der the  statute,  and  that  the  fact  that  a  cottage  stands  in  the  field, 
part  of  such  superfluous  lands,  will  not  bring  them  within  the 
exception  of  lands  built  on  or  used  for  building  purposes.2 


1  Moody  v.  Corbett,  Law  Rep.  1  Q.  B.  510. 

2  Carington  v.  Wycomb  Railw.  Law  Rep.  2  Eq.  825. 


[*378] 


:;•.•.; 


MODI-:    OF    ASSESSING    COMPENSATION. 


PART  III. 


♦CHAPTER     XIV. 

THE    MODE    OF    ASSESSING    COMPENSATION    UNDER    THE    ENGLISH 

STATUTES. 

SECTION     I. 
By  Justices  of  the  Peace. 


1.  Where  compensation  claimed  does  not  ex- 

ceed  £50. 

2.  Modi  of  enforcing  award. 


3.    Value  of  land  and  injury  accruing  from 
severance  to  be  considered. 


§  102.  1.  By  the  English  statute,  where  the  compensation 
claimed  shall  not  exceed  X50,  the  same  is  to  be  settled  by  two 
justices.  So,  also,  as  to  damages  claimed  for  lands  injuriously 
affected.  So,  too,  if  the  company  enter  upon  any  private  road  or 
way.  And  justices  may  fix  the  compensation,  in  certain  cases, 
for  the  temporary  use  of  land ;  and  the  compensation  to  tenants 
for  a  year,  or  from  year  to  year.  They  may  apportion  the  rent, 
too,  where  the  whole  land  is  not  taken.  In  some  of  these  cases 
their  jurisdiction  extends  beyond  £50. 

2.  The  mode  of  enforcing  payment  of  money  awarded  by  such 
justices,  is  to  obtain  an  order,  which  may  be  enforced  by  distress, 
upon  the  goods  and  chattels  of  the  party  liable.  The  certiorari  is 
taken  away  in  such  cases,  but  an  order  of  such  justices  may  still 
be  brought  up,  to  be  quashed,  for  want  of  jurisdiction.1 

3.  The  justices  are  to  take  into  consideration  the  value  of  the 
land,  and  any  injury  which  may  accrue  from  severance. 


SECTION    II. 

By   Surveyors. 

§  103.  The    assessment   of  compensation  by  surveyors,  under 
the  English  statutes,  is  merely  provisional  in  most  cases,  as  where 
1  See  the  sul.ject  discussed  post,  §§  163-165. 

[*379] 


§104. 


BY    ARBITRATION. 


397 


the  party  is  out  of  the  kingdom,  or  cannot  be  found,  two  justices 
*  are  required  to  nominate  an  able  practical  surveyor,  who  is, 
under  certain  solemnities,  required  to  make  a  valuation  of  the 
land  taken  or  injuriously  affected,  the  amount  of  which  the  com- 
pany are  required  to  deposit  in  the  bank,  before  proceeding  with 
the  works.  And  if  such  party  be  dissatisfied  with  the  sum  thus 
deposited,  he  may,  before  applying  to  Chancery  for  the  money, 
require  the  question  to  be  submitted  to  arbitration,  as  in  other 
cases  of  disputed  compensation.  Surveyors  are  required  to  as- 
sess damages  for  severance  of  land,  the  same  as  justices  of  the 
peace.1 


SECTION    III. 


By  Arbitration. 


1.  May  be  claimed  in  cases  exceeding  juris- 

diction of  justices  of  the  peace. 

2.  How  made  compulsory. 

3.  What  form  of  notice  is  sufficient. 
n.  5.  Analogous  American  cases. 

4.  Arbitrator's  power  limited  to  award  of  pe- 

cuniary compensation. 

5.  Where   land-owner  gives   no  notice,  com- 

pany may  treat  it  as  case  of  disputed 
compensation. 

6.  Similar  rule  under  Massachusetts  statute 

regarding  alteration  of  highways. 


7.  And  land-owners  may    recover   without 

waiting  for  selectmen  to  act. 

8.  Company  estopped  in  such  case  from  de- 

nying that  road  was  constructed  by 
their  servants.  Embankments  part  of 
the  railway. 

9.  Finality  of  award. 

10.  May    employ    experts.      Damages    em- 

braced. 

11.  Construction  of  general  award. 


§  104.  1.  By  the  English  statutes,  if  the  amount  of  compensa- 
tion claimed  exceed  the  jurisdiction  of  two  justices,  any  party 
claiming  compensation  may  compel  an  arbitration,  by  taking  the 
requisite  steps  in  due  time.  Unless  both  parties  concur  in  the 
same  arbitrator,  each  party,  upon  the  request  of  the  other,  is  re- 
quired to  name  one.  The  appointment  of  the  arbitrator  is  to  be 
under  the  hand  of  the  party,  and  delivered  to  the  arbitrator,  and  is 
to  be  deemed  a  submission  by  such  party.  Such  submission  is 
irrevocable,  even  by  the  death  of  the  party. 

2.  If  either  party  neglect,  for  fourteen  days  after  request  by 
the   other  party,  to  name  an   arbitrator,  one  may  be  named  by 


1  Hodges  on  Railways,  250,  251,  252. 


[*380] 


898  MODE    OF    A8SESSING    COMPENSATION.  PART  III. 

the  other  party,  who  shall  decide  the  controversy.  If  either 
party  name  an  arbitrator  who  is  incompetent,  the  other  party 
must  retire  from  the  arbitration,  or  he  will  he  hound  by  his  ac- 
quii  The  secretary  of  a  railway  company,  by  the  Eng- 

lish statutes,  would  seem  to  have  power  to  hind  the  company, 
by  Bigning  the  submission,  whether  the  arbitration  is  compulsory 
or  not.2 

3.  It  was  held  that  the  appointment  of  an  arbitrator  or  referee 
implied  the  notification  of  such  appointment  to  the  other  party 
within  the  time  limited  in  the  submission,  or  the  doings  of  such 
referee  were  void.3  And  not  only  so,  but  the  notice  must  he  ex- 
plicit. It  is  not  sufficient  to  say,  "  Take  notice,  that  it  is  my  in- 
tention to  nominate  S.  M.,"  notwithstanding  it  was  added,  "if  the 
company  fail  to  appoint,  I  the  said  T.  B.  will  appoint  S.  M.  to 
act  on  behalf  of  both  parties."  4  And  in  this  case  it  is  said,  it 
would  seem  that  the  appointment  by  the  claimant  of  an  arbitrator 
to  act  for  both  parties,  is  not  valid,  unless  he  has  previously 
appointed  an  arbitrator,  on  bis  part,  and  notified  such  appointment 
to  the  company.  There  should  be  two  separate  appointments, 
although  it  may  be  of  the  same  person,  it  is  here  suggested.5 

4.  The  arbitrator  has  no  power  beyond  the  awarding  of  a 
pecuniary  compensation  for  the  land  taken  by  the  company,  and 
cannot  direct  what  right  of  way  shall  remain  in  the  tenant  to  the 
portion  of  land  not  taken.6  Nor  can  he  apportion  the  rent  to  the 
tenant.6 

5.  If  the  land-owner  gives  no  notice  of  claim,  in  reply  to  the 

1   In  re  Eliott,  2  De  G.  &  Sm.  17. 

8  Collins  v.  South  Staffordshire  Kailw.  Co.,  7  Exch.  5  ;  s.  c.  21  Law  J.  (Ex.) 
247;  s.  c.  12  Eng.  L.  &  Eq.  565.  3  Tew  v.  Harris,  11  Q.  B.  7. 

*  Bradley  v.  London  &  N.  W.  Railw.  Co.,  5  Exch.  769. 

'  But  alien;  both  parties  petition  for  a  jury  to  revise  the  damages,  one  war- 
rant is  sufficient.  Davidson  v.  Boston  &  Maine  Railw.,  3  Cush.  91.  And  if  two 
warrants  are  issued,  the  sheriff  should  execute,  and  return  them  as  one.  "lb. 
And  where  there  are  several  applications,  which  by  statute  are  to  be  determined 
by  "He  jury,  the  proper  mode  is  to  issue  but  one  warrant  to  the  sheriff;  but  if 
:.d  warrants  issue  irregularly,  yet  if  the  oflicer  summon  a  single  jury,  who 
hear  and  determine  each  case,  their  verdicts  will  not  be  set  aside  for  such 
ilarity.     Wyman  r.  Lexington  &  West  Cambridge  Railw.,  1:5  Met.  316. 

6  Wan-  v.  Regent's  Canal  Co.,  9  Exch.  395;   s.  c.  25  Eng.   L.  &  Eq.  4-44. 
Nor  fan  tli-  tenant  recover  damages  for  the  depreciation  of  the  use  of  premises 
used  for  a  public  house,  during  the  pendency  of  the  proceedings  after  notice.    The 
Queen  v.  Met.  &  D.  Railway,  L.  R.  4  Q.  B.  190. 
[*381] 


§  104.  BY    ARBITRATION.  399 

notice  to  treat,  the  company  may  treat  it  as  a  case  of  disputed 
compensation.7  If  the  compensation  claimed  be  less  than  50/.,  it 
may  be  settled  by  two  justices.  But  if  more  than  50/.  be  claimed, 
or  offered,  and  the  claimant  desire  to  have  it  settled  by  arbitra- 
tion, *  it  is  at  his  option,  and  he  must  give  notice  of  such  desire 
before  the  company  issue  their  warrant  to  the  sheriff  to  summon 
a  jury  to  assess  the  compensation,  which  they  may  do  in  ten  days 
after  giving  the  claimant  notice  that  they  shall  do  so,  unless  in  the 
mean  time  he  elect  to  have  the  matter  settled  by  arbitration.7 

6.  And  under  the  Massachusetts  statute  giving  railways  the 
right  to  alter  highways,  upon  giving  notice  to  the  selectmen  of  the 
towns  where  such  highways  are  situated,  and  conforming  to  their 
requirements,  or  the  decision  of  the  county  commissioners,  in  re- 
gard to  the  alteration  of  the  highway,  it  was  held,  that  if  the  select- 
men give  no  notice  to  the  company,  as  to  what  alterations  they 
require,  the  presumption  is,  that  they  require  none,  but  leave  the 
whole  matter  to  the  company. 

7.  And  to  entitle  adjoining  land-owners  to  recover  damages  of 
the  railway  under  the  statute  of  Massachusetts,  it  is  not  necessary 
that  the  selectmen  should  have  acted  in  the  premises.  The  remedy 
in  such  case  is  not  by  an  action  against  the  town,  but  by  proceed- 
ings under  the  statute  against  the  company.8 

8.  In  such  case  the. company  are  estopped  to  deny,  that  the  con- 
struction of  their  road,  as  in  fact  made,  was  done  by  their  servants 
in  compliance  with  the  requirement  of  the  charter.8  And  embank- 
ments made  by  them  for  the  purpose  of  carrying  a  highway  over 
the  railway,  are  to  be  regarded  as  a  part  of  the  railway.8 

9.  By  a  submission  to  arbitration  it  was  provided  that  the  arbi- 
trator should  determine  what  sum  should  be  paid  for  the  purchase 
of  land,  and  what  "  other,  if  any,  sum  for  severance  damage,  and 
the  arbitrator  after  reciting  "  the  submission,  and  that  be  had  con- 
sidered the  matters  so  referred  to  him,  awarded  a  certain  sum  to 
be  paid  for  the  purchase  of  the  land,  without  saying  any  thing 
about  severance  damage  :  it  was  held  that  the  award  was  final 
and  good,  that  the  arbitrator  by  his  silence  negatived  any  right  to 
compensation  on  account  of  severance  damage. 

7  8  &  9  Viet.  c.  18.  §§  21,  22,  23,  38. 

8  Parker  v.  Boston  &  Maine  Railw.,  3  Cush.  107. 

9  In  re  Swansea  Harbor  Trustees,  6  Jur.  (N.  S.)  979  ;  S.  c.  nom.  Beaufort  v. 
Swansea  Harbor  Trustees,  8  C.  B.  (N.  S.)  146. 

[*382] 


400  MODE   OF   ASSESSING   COMPENSATION.  PART  III. 

I (i.  A  Bubmission  to  arbitration  under  the  English  statute  for 
ssing  land  damages  is  not  revoked  by  the  death  of  the  land- 
owner."'  1 1  was  here  considered  that  the  award  was  valid, although 
*  not  made  within  the  statute  period  of  three  months  ;  that  the  arbi- 
trator may  employ  an  expert  and  consult  men  of  science,  if  neces- 
sary ;  that  the  right  to  compensation  extends  to  any  land  injured 
by  the  severance  of  that  which  was  taken,  or  by  the  works  which 
the  company  is  authorized  to  construct,  and  may  include  damages 
likely  to  be  caused  to  the  tenants  of  the  land-owner.  The  right  to 
compensation  depends  on  cause  and  effect,  and  not  on  "  proximity 
or  distance." 

11.  The  award  of  a  gross  sum  for  damages  for  drainage  which 
lessened  a  water-power  upon  which  a  mill  had  been  erected,  was 
held  presumptively  to  apply  to  the  damage  to  the  mill,  and  not 
to  the  unemployed  water-power,  which  might  be  available  for  the 
proprietor  of  the  other  side  of  the  river.11 

10  Caledonia  Railw.  Co.  v.  Lockhart,  3  Mcqu.  Ho.  Lds.  808;  s.  c.  6  Jur. 
(N.  S.)  1311,  in  the  House  of  Lords. 

11  St.  George  v.  Reddington,  10  Ir.  Ch.  176. 

[*383] 


PART  IY. 

THE  LAW  OF  CONTRACTS  AS  APPLIED  TO  THE  CON- 
STRUCTION OF  RAILWAYS  AND  TELEGRAPHS; 
TOLLS,  ETC. 


26 


PART    IY. 

THE  LAW  OF  CONTRACTS  AS  APPLIED  TO  THE  CON- 
STRUCTION OF  RAILWAYS  AND  TELEGRAPHS ; 
TOLLS,  ETC. 


CHAPTER    XV. 


CONSTRUCTION    OP    RAILWAYS. 


SECTION    I. 


Line  of  Railway.  —  Right  of  Deviation. 


1.  Manner  of  defining  the  route  in  English 

charters. 

2.  Question  involved  stated. 

3.  Plans  only  binding,  when  and  for  the 

purpose  referred  to  in  the  act. 

4.  Contractor  bound  by  deviation,  unless  he 

object. 

5.  Courts  of  equity  will  not  enforce  contract 

against  public  security. 

6.  Right  to  construct  accessory  works. 

7.  8.   Company  may  take  lands  designated, 

in  their  discretion. 
9.  Equity  cannot  enforce  contract  not  incor- 
ati  d  into  the  act. 

10.  Right  of  deviation  lost  by  election. 

11.  Railway   between   tivo  towns,   extent   of 

grant. 

12.  t  Irani  of  land  for  railway  includes  acces- 

sories. 


13.  Route  designated   need  not   be  followed 

literally. 

14.  Terminus  being  a  town,  is  not  extended, 

us  the  town  extends. 

15.  Party  accepting  compensation  waives  in- 

formality. 

16.  Powers  limited  in  time  expire  with  limi- 

tation. 

17.  Construction  of  charter  as  to   extent  of 

route. 
is.   Map    may    be    made   to  yield  to  other 
grounds  of  construction. 

L9.  Power  to  change  location  must  be  exer- 
cised before  construction. 

20.  Binding  force  of  plans   made   part   of 

charter. 

21.  Grant  terminating  at  town  liberally  con- 

strued. 


§  105.  1.  The  English  railway  acts  are  granted  altogether,  after 
full  surveys  of  the  route  and  with  reference  to  definite  plans  of 
the  engineers,  which,  when  referred  to  generally  in  the  act,  thus 
become  so  far  a  part  of  it  as  to  be  binding  upon  the  company  to 

[*384] 


404  CONSTRUCTION    OP   RAILWAYS.  PART  IV. 

the  extenl  of  determining  the  datum  line,  and  the  line  of  railway 
measured  with  reference  to  that  datum  line ;  and  the  level  of  the 
railway,  with  reference  to  the  datum  line;  but  not  the  surface 
levels,  unless  expressly  so  provided  in  the  act.1 

1  North  British  Railw.  v.  Tod,  5  Bell  Ap.  Cas.  184;  s.  c.  4  Railw.  C.  449. 
This  was  an  appeal  from  the  judgment  of  the  Court  of  Sessions  in  Scotland. 
The  opinions  of  Lord  Lyndkurst,  Chancellor,  and  of  Lord  Campbell,  C.  J., 
certainly  exhibit  the  rule  of  the  English  law  upon  this  subject  very  fully  and  very 
ably.  Lord  Lyndkurst  says:  "Now  as  to  the  effect  of  plans  exhibited  previous 
to  the  contract  being  made,  or  previous  to  the  act  of  parliament  being  obtained, 
ii  d  es  seem,  from  cases  which  have  occurred,  both  in  Scotland  and  this  country, 
that  the  rule  of  the  courts  in  this  country,  and  in  the  other,  is  no  longer  a  matter 
of  any  doubt  or  dispute.  If  a  contract  or  an  act  of  parliament  refer  to  a  plan, 
to  the  extent  that  the  act  refers  to  the  plan,  and  for  the  purpose  for  which  the  act 
or  contract  refers  to  the  plan,  undoubtedly  it  is  part  of  the  contract  or  part  of 
the  act.  As  to  that  there  is  no  dispute.  A  contract,  or  an  act  of  parliament, 
either  does  not  refer  to  a  plan  at  all,  or  it  refers  to  it  for  particular  purposes.  It 
has  been  contended,  both  in  Scotland  and  in  England,  that  the  defendant  in  the 
suit,  or  those  who  claim  the  benefit  of  the  provisions  of  an  act  of  parliament, 
previous  to  this  enactment  being  made,  or  the  contract  being  concluded,  have 
represented  that  the  works  are  to  be  carried  on  in  a  particular  mode,  upon  a  plan 
shown  previous  to  the  powers  being  obtained  under  the  act,  or  the  contract  be- 
ing concluded,  and  that  the  party  obtaining  the  act,  or  obtaining  the  contract,  is 
bound  by  such  representation.  There  was  a  case  very  much  considered  in  Scot- 
land, the  case  of  The  Feoffees  of  Heriot's  Hospital  v.  Gibson,  2  Dowl.  301 ;  and 
several  cases  have  occurred  in  the  courts  of  equity  in  this  country.  It  was  my 
fortune  to  have  to  consider  the  matter  very  minutely  in  the  case  of  Squire  v. 
Campbell,  1  My.  &  Cr.  459,  in  which  I  thought  it  my  duty  to  review  all  the  cases 
that  had  occurred  in  the  one  country  and  in  the  other,  for  the  purpose,  if  possi- 
ble, of  establishing  a  rule  which  might  be  a  guide  on  future  occasions  when  sim- 
ilar cases  should  occur;  and  I  found  that,  certainly,  what  had  been  very  much 
the  opinion  of  the  profession  in  this  country,  namely,  that  the  parties  were 
bound  by  the  exhibition  of  such  plans,  had  met  with  a  very  wholesome  correc- 
tion by  the  doctrine  laid  down  by  Lord  Eldon,  and  Lord  Bedcsdale,  in  the  case 
of  Heriot's  Hospital,  decided  by  this  House.  Under  the  authority  of  that  case, 
m  which  the  point  was  very  distinctly  raised,  and  deliberately  decided  upon,  I 
came  to  tin-  conclusion  that  there  was  no  ground  for  equitable  interposition. 
Now,  my  Lords,  not  relying  upon  the  authority  of  Squire  v.  Campbell,  but  rely- 
in-,  a-  wc  are  bound  to  do,  upon  the  case  of  The  Feoffees  of  Heriot's  Hospital, 
I  consider  that  to  be  the  rule  to  which  the  courts  of  this  country,  and  the  Court 
of  Sessions  in  Scotland,  and  this  House,  must  hereafter  adhere.  Taking  that, 
then,  t<.  be  the  rule  in  examining  the  facts  of  this  case,  and  the  act  of  parliament 
upon  which  the  question  turns,  we  are  not  to  look  at  what  was  represented  upon 
the  pan,  except  so  far  as  its  representation  is  incorporated  in,  and  made  part 
of,  the  act  of  parliament ;  and  the  real  question,  therefore,  turns  upon  this,  whether 
the  a<-t-  of  parliament  do  or  do  not  make  the  datum  line,  and  line  of  railway  with 
[*384] 


§105.  LINE    OF    RAILWAY.  —  RIGHT    OF    DEVIATION.  405 

*  2.  The  question  in  this  last  case1  was  in  regard  to  the  right 
to  intersect  an   approach,  leading  to  a  mansion-house,  at  a   dif- 

reference  to  that  datum  line,  the  subject-matter  of  these  enactments,  a  \d  the  rule 
by  which  the  rights  of  the  parties  are  to  be  regulated,  or  whether  it  also  includes 
the  surfaces  which,  in  this  instance,  accidentally,  no  doubt,  had  been  very  much 
misrepresented  upon  the  plan. 

"I  say,  then,  that  a  case  does  arise  upon  these  provisions  of  the  act,  in  which 
the  plan  indeed  is  referred  to,  but  is,  in  the  terms  of  the  act  of  parliament,  re- 
ferred to  only  for  the  purpose  of  ascertaining  the  line  of  the  railway,  with  refer- 
ence to  the  datum  line.  It  is  not  referred  to  with  reference  to  any  surface  level. 
The  plan,  therefore,  is  entirely  out  of  the  enactment,  and  is  not  to  be  looked  at 
for  the  purpose  of  construing  the  enactment  as  to  any  part  of  it,  except  so  far 
as  it  is  referred  to  and  incorporated  in  the  act.  Arriving  at  that  construction 
of  the  rule  upon  the  provisions  of  the  two  acts  to  which  I  have  referred,  and 
applying  it  to  the  principle  which  has  been  established  in  the  cases  I  have  men- 
tioned, we  have  no  difficulty  in  coming  to  the  conclusion,  that  the  application  of 
that  principle  will  necessarily  lead  to  the  construction  of  the  clauses  to  which  I 
have  referred.  The  plan  is  binding,  to  the  extent  of  determining  the  datum  line, 
and  the  line  of  railway  measured  with  reference  to  that  datum  line,  but  not  with 
reference  to  the  surface  levels  of  the  land,  because  the  act  does  not  apply  it  for 
that  purpose,  but  cautiously  confines  the  enactment  to  the  other  plans  to  which 
I  have  referred. 

"Acting,  therefore,  upon  the  principle  so  established,  and  with  reference  to 
the  construction,  or  what  I  conceive  to  be  the  construction,  to  be  put  upon  these 
sections,  although  we  cannot  but  greatly  lament  the  hardships  which,  in  all  prob- 
ability, these  circumstances  have  imposed  upon  the  respondent,  in  having  his 
land  interfered  with  in  a  manner  which  he  did  not  at  all  anticipate;  yet,  when 
we  are  called  upon  to  consider  whether  the  Court  of  Sessions  is  correct  or  not, 
we  are  bound  to  look  to  see  what  are  the  powers  which  these  acts  vest  in  the 
company  ;  and  for  the  reason  I  have  explained,  I  come  to  the  conclusion  that 
the  company  have  not  exceeded  those  powers,  and  do  not  propose  to  exceed 
those  powers,  in  the  plans  that  the}'  have  formed,  and  that  the  Court  of  Sessions 
has  been  in  error  in  granting  the  interdict." 

Lord  Campbell.  —  "I  acknowledge  that  I  come  to  the  conclusion  at  which  I 
have  arrived  with  very  great  reluctance.  It  seems  to  me  to  be  a  case  of  very 
great  hardship  upon  the  respondent.  But.  when  we  come  to  consider  what  the 
lawupon  the  subject  is,  I  feel  bound  to  concur  in  the  opinion  which  has  been 
expressed.  What  is  the  legal  construction  of  the  act  of  parliament  ?  Does  the 
company,  or  does  it  not,  propose  to  exceed  the  powers  which  the  acts  of  parlia- 
ment confer  upon  it?  Now  it  is  admitted,  that  if  the  deviation  is  to  be  calcu- 
lated from  the  datum  line  alone,  they  (the  company)  do  not  propose,  either 
vertically  or  laterally,  to  exceed  the  powers  of  deviation  which  are  conferred 
upon  them.  Well,  then,  that  raises  the  question  whether  those  powers  of  devia- 
tion are  to  be  calculated  from  the  datum  line  alone,  or  whether  the  surfacedevel 
is  to  be  taken  into  consideration,  and  my  opinion  is,  that  the  act  does  refer  every 
thing  to  the  datum  line.  I  think  it  is  evident  that  the  11th  section  clearly  makes 
the  datum  line  alone  that  which  is  to  be  regarded.     The  word  '  levels  '  in  the 

[*385] 


106  nSTRUCTION   of  RAILWAYS.  PART  IV. 

ferent  "level  from  that  laid  down  in  the  parliamentary  plans,  in 
which  it  appeared  as  a  cutting  of  fifteen  feet,  and  the  way  raised 
•  upon  a  bridge  two  feet.  The  owner  of  the  house,  it  seems,  had 
opposed  the  railway  being  carried  through  his  avenue,  but,  rely- 
in--  upon  the  representations  contained  in  the  plan  and  sections, 
was  induced  fco  abstain  from  opposing  the  bill.  The  line  of  devia- 
tion is  marked  upon  the  plan,  and  is  by  the  act  limited  to  ten 

plural  number,  really  does  not  at  all  include  the  surface-levels.  It  means  merely 
the  levels  of  the  (latum  line,  which  point  out  the  course  the  railway  is  to  go.  If 
that  be  so,  the  company  do  not  propose  to  do  any  thing  that  they  are  not  author- 
ized to  do,  according  to  the  letter  of  the  act  of  parliament. 

ere  certainly  was  a  representation  made  here  on  the  part  of  the  company, 
when  they  proposed  to  bring  in  the  act,  by  which  they  intimated  that,  at  that 
time,  the  intention  was  that  the  railway  should  be  fifteen  feet  four  inches  below 
the  surface  of  the  respondent's  property  at  the  point  of  intersection  ;  and  that  the 
bridge  by  which  his  approach  should  pass  over  the  railway,  would  not  be  more 
than  three  feet.  But  this  was  entirely  an  intimation,  on  the  part  of  the  company, 
that  such  was  their  intention.  An  act  of  parliament  of  this  sort  has,  by  Lord 
/  I  m  and  all  other  judges  who  have  considered  the  subject,  been  considered  as 
a  contract.  Well,  then,  what  took  place  was  a  negotiation  ;  it  was  not  a  contract. 
We  must  disregard  it,  and  we  must  look  to  see  what  the  contract  was.  The  con- 
tract is  to  I*''  gathered  from  the  words  of  the  act  of  parliament;  and  that  brings 
us  to  the  question  that  1  first  considered,  what  is  the  construction  of  the  act  of 
parliament  ?  That  act  of  parliament  must  be  considered  as  overruling  and  doing 
away  with  every  thing  that  had  taken  place  prior  to  the  time  when  the  act  passed, 
and  renders  the  representation  or  proposal  of  the  company,  pending  the  act,  of 
no  avail.  Many  cases  have  occurred  in  the  courts  of  common  law  in  which  it  has 
been  held,  that  every  thing  that  takes  place  before  a  written  contract  is  signed  is 
entirely  to  be  disregarded  in  construing  the  contract.  Now,  if  the  respondent 
had  been  cautious,  he  would  have  done  what  I  would  strongly  recommend  to  all 
gentlemen  hereafter  to  do,  under  similar  circumstances,  which  is,  to  have  a  special 
clause  introduced  into  the  act  of  parliament  to  protect  their  rights." 

dso  Beardmer  v.  The  London  &  N.  Western  Rail w.,  1  Hall  &  Twells, 
101  ;  8.  c.  5  Railw,  C.  728.  The  same  rule  obtains  in  this  country.  Boston  & 
Prov.  Railw.  v.  .Midland  Railw.,  1  Gray,  SiO ;  Commonwealth  v.  Fitchburg 
Railw.,  8  <  lush.  240.  It  seems  that  the  deviation  of  five  feet,  which,  by  the  11th 
section  of  the  Railway  Clauses  Act  of  1845,  is  allowed  in  regard  to  levels,  is  to  be 
reckone  I  with  reference  to  the  level  of  the  datum  line,  and  not  with  reference  to 
the  Burfac  I   line  ited  on  the  plans.     And  any  greater  deviation  in  regard 

to  levels,  which  may  be  obtained,  under  certain  conditions,  in  certain  emergen- 
cies, is  subject  to  the  discretion  of  the  Railway  Commissioners;  and  at  the  suit 
of  land-owners,  affected  by  such  deviation,  beyond  the  limits  allowed  by  the  act, 
the  Court  of  Chancery  will  restrain  the  company  from  proceeding  until  they  ob- 
tain the  judgment  of  such  commissioners.  Pearee  v.  Wycombe  Railw.,  1  Drew. 
244;  >.  c.  19  Eng.  L.  &  Eq.  122. 

[*386,  387] 


§105.  LINE   OP   RAILWAY. — RIGHT   OF   DEVIATION.  407 

yards  in  passing  through  villages,  and  one  hundred  yards  in  the 
•open  country. 

3.  In  this  case  it  was  decided,  that  the  plans  were  only  binding 
upon  the  company  to  the  extent  to  which  they  were  referred 
to  in  the  act,  and  that  it  made  no  difference  that  the  deposited 
plans  were  so  incorrect  as  altogether  to  mislead  the  owner  of  the 
lands,  in  reference  to  the  manner  in  which  his  property  would  be 
affected  by  the  railway  works.  The  plans  not  being  referred  to  in 
the  act,  or  only  referred  to,  as  in  the  present  case,  to  determine 
*  the  datum  line  with  reference  to  lateral  deviation,  could  not  con- 
trol beyond  the  matter  of  lateral  deviation. 

4.  This  subject  is  incidentally  connected  with  the  performance 
of  construction  contracts.  But  it  has  been  held,  where  the  com- 
pany deviate  from  the  intended  line  of  the  road,  even  beyond 
what  was  permitted  by  their  act,  with  the  consent  of  the  land- 
owner, and  the  contractor  never  objected  to  the  deviation,  but 
continued  to  receive  certificates  of.  estimates,  and  payments,  in 
precisely  the  same  mode  in  which  he  would  have  received  them 
had  the  deviation  not  taken  place,  that  it  did  not  affect  his  lia- 
bility upon  the  contract.2 

5.  A  reference,  in  the  special  act,  to  the  deposited  plans,  for 
one  purpose,  does  not  make  them  binding  for  all  purposes.3  So, 
too,  where,  by  the  general  acts,  a  railway  company  has  power  to 
pass  highways  and  other  roads,  by  bridges,  or  excavation,  in 
their  discretion,  but  their  special  act  gives  them  power  to  pass 
them  on  a  level,  this  will  not  compel  them  to  do  so ;  they  may 
still  exercise  the  power  conferred  by  the  general  acts.  And  a 
special  agreement  with  land-owners,  that  they  will  pass  such  roads 
on  a  level,  being  a  contract  in  derogation  of  public  right,  inasmuch 
as  the  public  security  is  greatly  jeoparded  thereby,  will  not  be 
specifically  enforced  in  a  court  of  equity.4 

2  Ranger  v.  The  Great  Western  Railw.,  5  Ho.  Lds.  72;  s.  c.  27  Eng.  L.  & 
Eq.  35. 

3  Reg.  v.  Caledonia  Railw.,  16  Q.  B.  19 ;  s.  c.  3  Eng.  L.  &  Eq.  285.  Where 
there  is  a  power  given  for  deviation  in  the  construction,  which  would  render 
some  portion  of  the  delineated  surveys  impracticable,  it  must  be  taken,  as  of 
necessity,  that  the  legislature  intended  the  omission  of  such  particulars  as  became 
impractical  tie  in  a  given  contingency  allowed  by  the  act. 

*  Braynton  v.  The  London  &  North  W.  Railw.,  4  Railw.  C.  553.  But  the 
Lord  Chancellor,  ujion  appeal,  considered  that  the  agreement  only  extended  to 

[*388] 


408  CONSTRUCTION   OF   RAILWAYS.  PART  IV. 

6.  The  extenl  of  deviation  is  to  be  measured  from  the  line 
delineated  upon  the  plans  to  the  actual  medium  filum  of  the  rail- 
way as  constructed,  and  the  fact  of  the  embankments  extending 
beyond  that  distance  is  no  violation  of  the  right  of  deviation 
allowed  in  the  act.5  Where  a  tunnel  is  marked  upon  the  plans 
referred  to  in  the  act,  it  must  be  made  in  the  exact  position  in- 
dicated, *  and  the  general  right  of  deviation  does  not  apply.6  But 
the  company  may  take  lands  within  the  line  of  deviation  for  a 
branch  railway.7  Under  an  act  allowing  land  to  be  "  taken  when 
necessary  for  making  and  maintaining  the  said  railway  and  works," 
it  was  held  that  the  company  might  take  lands  for  forming  or  en- 
larging stations,  or  places  for  carriages  to  collect  and  wait  till 
trains  are  ready  to  start ;  and  the  Lord  Chancellor  said,  in  one 
case,8  "  The  term  railway,  by  itself,  includes  all  works  authorized 
to  be  constructed ;  and  for  the  purpose  of  constructing  the  rail- 
way, the  company  are  authorized  to  construct  such  stations  and 
other  works  as  they  may  think  proper." 

7.  And  it  would  seem  that,  where  lands  are  designated  by  num- 
bers on  the  plans,  although  not  altogether  within  the  line  of  devia- 
tion, they  may  be  taken  by  the  company  when  necessary  for 
stations.9 

And  it  has  recently  been  decided  in  the  House  of  Lords,  that 
where  the  legislature  authorized  a  railway  company  to  take,  for 
the  purpose  of  their  undertaking,  any  lands  specially  described  in 
the  act,  it  constitutes  them  the  judges  as  to  whether  they  will  or 
will  not  take  those  lands,  provided  they  take  them  bona  fide,  with 
the  object  of  using  them  for  the  purposes  authorized  by  the  legis- 
lature, and  not  for  any  sinister  or  collateral  purpose.10     And  after 

the  land  to  be  purchased,  and  that  it  contained  nothing  intended  to  limit  the 
powers  given  to  the  company  by  the  general  acts. 

s  Doe  d.  Payne  v.  The  Bristol  &  Exeter  Railw.,  2  Railw.  C.  75 ;  s.  c.  6  M. 
&  W.  320  ;  Doc  d.  Armistead  v.  The  North  Staffordshire  Railw.,  16  Q.  B.  526; 
Eng.  L.  &.  Eq.  216. 
6  Little  v.  The  Newport,  Ab.  &  Hereford  Railw.,  12  C.  B.  752  ;  s.  c.  14  Eng. 
L.  &  Eq.  309. 

-  idd  v.  The  Maldon,  Witham,  &  B.  Railw.,  6  Exch.  143. 
I     ther  r.  .Midland  Railw.,  2  Phillips,  469. 

9  (  rawford  v.  Chester  &  Holyhead  Railw.,  11  Jur.  917  ;  1  Shelford,  Bennet's 
cd.  617.  But  the  deviation  is  not  authorized  for  the  purpose  of  taking  materials 
alone.     Bentinck  r.  Norfolk  Estuary,  32  Law  Times,  29. 

10  Stockton  &  Darlington  Railw.  Co.  v.  Brown,  9  Ho.  Lds.  246;  s.  c.  6  Jur. 
(N.  S.)  1168.     But  a  ra  *wa.  cannot  take  vhe  fee  of  land  for  the  purpose  of  sup- 

[*389] 


§  105.  LINE   OF   RAILWAY.  —  RIGHT   OP   DEVIATION.  409 

referring  the  question,  as  to  the  propriety  or  right  to  take  the  land, 
to  an  engineer,  who  decided  against  the  company  and  in  favor  of 
the  land-owner,  the  court  ultimately  held  that  neither  the  opinion 
of  the  engineer  nor  of  the  court  could  curtail  the  power  of  the 
company  in  respect  to  the  quantity  of  land  which  *  the  company, 
bona  fide  acting  under  its  statutory  powers,  sought  to  obtain. 

8.  And  where,  by  a  special  act,  a  company  were  empowered 
to  erect  a  market-house  on  land  described  in  the  deposited  plans, 
it  was  held,  that  as  the  land  of  the  plaintiff  was  described  in  the 
plans,  and  as  it  might  be  wanted,  the  company  were  authorized 
to  take  it,  and  that  the  company  were  to  be  regarded  as  the  proper 
judges  of  what  lands  were  necessary  for  the  works.11 

9.  The  trustees  of  a  turnpike-road  agreed  to  assent  to  a  bill  in 
parliament  for  the  formation  of  a  railway,  on  the  condition  that 
the  railway  should  pass  over  the  road  at  a  sufficient  elevation, 
and  the  road  be  not  lowered,  or  otherwise  prejudiced.  It  was 
held  that  this  modified  assent,  not  being  embodied  into  any 
agreement  between  the  trustees  and  company,  or  incorporated 
into  the  act,  afforded  no  equitable  ground  for  restraining  the 
company  from  the  exercise  of  all  their  powers  under  their  act ; 
that  the  company  were  authorized  to  sink  the  original  surface 
of  a  turnpike-road  to -gain  the  requisite  elevation  for  the  arch  of 
a  bridge  to  carry  the  railway  over  the  road,  notwithstanding  the 
effect  might  be  to  render  the  road  liable  to  be  occasionally 
flooded.1'2  Any  omission,  misstatement,  or  erroneous  description 
in  the  parliamentary  plans  referred  to  in  the  act,  may  be  cor- 
rected on  application  to  two  justices,  in  the  mode  prescribed  in 
the  act.13 

10.  By  statute,  in  some  of  the  states,  a  railway  company  who 

plying  soil  to  build  an  embankment.  Eversfield  v.  Midsussex  Railw.,  1  Giff.  153 ; 
B.C.  affirmed  5  Jur.  (N.  S.)  776;  s.  c.  3  De  G.  &  J.  286.  Nor  can  land  be 
taken  within  the  range  of  the  powers  conceded  by  the  act,  except  for  the  exclu- 
sive purpose  of  the  works  named  in  the  act,  and  if  any  subsidiary  object  is  em- 
braced in  the  purpose  of  taking,  as  to  give  a  more  convenient  road  for  an 
ordinary  land-owner,  who  was  to  pay  part  of  the  expense,  the  company  will  be 
restrained  by  injunction.  Dodd  v.  Salisbury  &  Yeoville  Railw.  Co.,  1  Giff.  158 ; 
5  Jur.  (N.  S.)  782. 

11  Richards  v.  The  Scarborough  Public  Market  Co.,  23  Eng.  L.  &  Eq.  343. 

12  Aldred  v.  The  North  Midland  Railw.,  1  Railw.  C.  404. 

13  Taylor  v.  Clemson,  2  Q.  B.  978;  s.  c.  3  Railw.  C  65,  shows  the  mode  of 
procedure  in  such  cases. 

[*390] 


410  CONSTRUCTION    OF    RAILWAYS.  PART  IV. 

file  the  Location  of  their  road  in  the  requisite  office,  are  allowed 
to  deviate,  to  any  extent  consistent  with  their  charter,  in  the 
oourse  ol  construction.14  But  it  has  been  held,  that  after  once 
•locating  their  road  their  power  to  re-locate,  and  for  that  pur- 
to  occupy  the  land  of  another  or  the  public  street,  ceases.13 
II.  li  has  been  held,  that  a  grant  to  a  railway  company  to 
const  met  their  road  between  two  towns,  gave  them  implied 
authority  to  construct  a  branch  to  communicate  with  a  depot 
and  turn-table,  on  a  street  in  one  of  the  towns  (New  Orleans) 
off  the  direct  line.16 

14  The  Boston  &  Providence  Railw.  v.  The  Midland  Railw.,  1  Gray,  3*0. 
The  charter  gave  the  company  power  to  construct  their  road  in  five-miles  sec- 
tions, but  not  to  begin  the  work  within  a  prescribed  distance  of  one  terminus, 
or  until  all  of  its  stock  was  taken  by  responsible  persons,  and  one  hundred  and 
forty  thousand  dollars  paid  into  the  treasury  ;  it  was  held,  that  this  restriction, 
in  regard  to  the  subscription  and  payment  of  stock,  did  not  fix  a  limitation  upon 
the  company  in  regard  to  building  their  whole  road  not  in  sections.  The  courts, 
in  interpreting  an  act  of  incorporation,  will  not  examine  what  took  place  while 
it  was  passing  through  the  Legislature.  Bank  of  Pennsylvania  ».  The  Comnion- 
w  :tl 1 1 1 ,  19  Penn.  St.  141.  And  in  Commonwealth  v.  Fitchburg  Railw.,  8  Cush. 
240,  il  was  held,  that  the  petitions  to  the  legislature  upon  which  the  act  was 
gran  rd  were  inadmissible  upon  the  question  of  the  construction  of  the  act,  in 
regard  to  the  course  and  direction  of  the  line  of  the  road. 

16  Little    Miami   Railw.   v.  Xavior,  2  Ohio   (N.  S.),  235.     And  an  authority 
to    change  the    location  of  the    line,  during    the  work,  does    not  imply  power 
to    change  it  after  the  road  is  complete.      Moorhead    v.   Little  Miami  Railw., 
17  Ohio,  340.     The   same  view  is  maintained   by  Lord   Eldon,  Chancellor,  in 
Blakemore    v.  Glamorganshire   Canal   Co.,  1  My.  &  K.  164.     But  a  different 
rule  seems  to  be  intimated  in  South  Carolina  Railw.  ex  parte,  2  Rich.  434,  and 
in  Miss.  oc  Tenn.  Railw.  v.  Devaney,  42  Miss.  555.    But  see  Canal  Co.  v.  Blake- 
more,  1  «  1.  &   Kin.  262;  Suite  v.  Norwalk  &  Danbury  Turnpike  Co.,  10  Conn. 
157 ;  Turnpike  Co.  v.  Hosmer,  12   Conn.  364;  Louisville  &  Nashville  Branch 
Turnpike  Co.   u.  Nashville  &  Kentucky  Turnpike  Co.,  2  Swan,  282,  where  the 
proposition  of  the  text  is  maintained,      lint  in  South  Carolina  Railw.  v.  Blake,  9 
Ri  :>.  l'_''J.  it  is  held,  that  a  railway  company  have  the  same  power  to  acquire  land, 
either  by  grant  or  by  compulsory  proceedings,  for  the  purpose  of  varying,  alter- 
in-,  and   repairing  their  road,  as   for  the  original  purpose  of  locating  and  con- 
structing it.      lint  thai  the  company  are  not  the  final  arbiters  in  determining  the 
exigency  for  taking  the  land.     The  petition  of  the  company  for  taking  the  land 
should  allege  in   detail  the  necessity  lor  taking  it,  and  the  land-owner  may  trav- 
ions,  and  in  that  case  tins  is   tried   as  a  preliminary  question. 

.    §    123  a. 

"  Knight  v.  Carrolton  Railw.,  «J  La.  Ann.  284;  New  Orleans  &  Carrolton 
Railw.  v.  Second  Municipality  of  New  Orleans,  1  id.  128.  But  where  by  the 
charter  of  a  railway  they  were  authorized  to  construct  their  road  "from  Charles- 

,91] 


§  105.  LINE   OP    RAILWAY.  —  RIGHT   OF   DEVIATION.  411 

12.  The  grant  to  take  land  implies  power  to  take  buildings.17 
And  a  grant  to  take  land  for  the  company's  road  implies  the  right 
to  take  land  for  all  the'  necessary  works  of  the  company,  such  as 
depots,  car  and  engine  houses,  tanks,  repairing  shops,  houses  for 
switch  and  bridge  tenders,  and. coal  and  wood  yards,  but  not  for 
the  erection  of  houses  for  servants,  car  and  engine  factories,  coal- 
mines, &c.18 

13.  And  a  charter  allowing  the  company  to  extend  their  line  to 
*a  certain  point,  "thence  running  through  Acton,  Sudbury,  Stow, 
Marlborough,"  <fec,  does  not  oblige  the  company  to  locate  their 
road  through  these  towns,  in  the  order  named  in  the  charter.  And 
a  location  of  the  road  from  Acton  through  Stow  to  Sudbury,  and 
thence  through  Stow  again  to  Marlborough,  was  held  to  be  a  suffi- 
cient compliance  with  the  grant,19 

14.  If  the  charter  of  a  railway  limit  the  line  of  construction,  by 

ton"  to  certain  other  points,  it  was  held  that  this  gave  them  no  authority  to 
enter  the  city,  but  that  the  boundary  of  the  city  was  the  terminus  a  quo.  North- 
east Railvv.  v .  Payne,  8  Rich.  177. . 

17  Brocket  v.  Railway,  14  Penn.  St.  241. 

18  State  v.  Coram,  of  Mansfield,  3  Zab.  510;  Vt.  Cent.  Railvv.  v.  Burlington, 
28  Vt.  193 ;  Nashville  &  C.  Railw.  v.  Cowardin,  11  Humph.  348.  The  company 
may  also  take  land  on  which  to  construct  highways  substituted  in  the  place  of 
those  put  to  the  use  of  the  railway  in  its  construction.  And  the  company  are 
not  prohibited  from  so  taking  land  because  it  already  has  land  upon  which  such  sub- 
stituted highway  might  be  built,  but  which  it  designs  for  other  lawful  uses. 
Lamb  v.  North  London  Railw.,  17  W.  R.  746  ;  s.  c.  L.  R.  4  Ch.  Ap.  522. 

19  Commonwealth  v.  The  Fitchburg  Railw.,  8  Cush.  240.  See  also  Brigham 
v.  Agricultural  Branch  Railw.,  1  Allen,  316.  It  seems  agreed  that  slight  devia- 
tions from  the  route  prescribed  in  the  charter  will  not  release  the  stockholders 
from  the  obligation  of  their  subscriptions ;  but  that  any  substantial  deviation 
will  have  that  effect.  The  precise  line  of  distinction  between  the  two  classes  of 
cases  must  be  left  to  the  construction  of  the  courts  in  each  particular  case.  The 
stockholders  may  enjoin  the  company  in  the  course  of  construction  from  makino- 
an  essential  deviation,  and  after  the  road  is  completed,  the  company  may,  by 
scire  facias,  be  called  to  account  for  not  building  upon  the  route  indicated  in 
the  charter.  But  where  all  interested  acquiesce  in  the  route  adopted,  until 
the  road  is  completed,  it  will  require  a  very  clear  case  to  induce  the  courts  to. 
interfere.  The  following  cases  bear  upon  the  general  question :  Ashtabula  & 
N.  L.  Railw.  v.  Smith,  15  Ohio  (N.  S.),  328 ;  Champion  v.  Memphis  &  C.  Railw. 
Co.,  35  Miss.  692;  Fry  v.  Lex.  &  Big  S.  Railw.  Co.,  2  Met.  (Ky.)  :I14; 
Aurora  V.  Wot,  22  Ind.  88 ;  Smith  v.  Allison,  23  id.  366  ;  Miss.  O.  &  R.  Railw. 
v.  Cross,  20  Ark.  413;  Witter  v.  same  Co.,  id.  463;  Illinois  Grand  T.  Railw. 
v.  Cook,  29  111.  237.  See  also  K.  R.  &  R.  Railw.  v.  Marsh,  17  Wis.  13;  Mor- 
ris &  Essex  Railw.  v.  Central  Railw.,  2  Vroom,  205. 

[*392] 


I  1  2  CONSTRUCTION   OP    RAILWAYS.  PART  IV. 

the  boundaries  of  a  borough,  and  the  boundaries  of  such  borough 
mbsequently  extended,  that  will  not  alter  the  right  of  the 

company  in  regard  to  the  location  of  their  road.20  And  an  exclu- 
sive -rant  Cora  railway  within  certain  limits,  defined  atone  ter- 
minus by  a  city,  is  to  be  restrained  to  the  limits  of  the  city  at  the 
date  of  the  grant.21 

15.  A  party  whose  land  was  taken  by  a  railway  company  for  the 
purposes  of  their  road,  and  the  damages  assessed  and  deposited 
for,  and  accepted,  by  him,  with  full  knowledge  of  all  the  proceed- 
ings and  of  any  defect  therein,  and  who  allowed  the  company  to 
occupy  the  land  and  make  improvements  thereon,  without  remon- 
strance, for  two  years,  and  who  then  brought  an  action  of  trespass 
against  the  company,  on  the  ground  that  their  proceedings  were 
irregular  and  void,  was  held  to  have  waived  all  right  to  object  to 
them  on  that  ground.22 

16.  And  where  the  company  by  charter  had  power  to  take  land 
*  for  engine  and  water  stations,  within  five  years  from  the  date  of 
their  grant,  it  was  held  they  could  not  exercise  such  powers  after 
the  expiration  of  the  time  limited,  although  operating  their  line  by 
horse  power  during  that  time  they  had  not  required  the  exercise 
of  such  powers  on  that  account.23 

17.  A  charter  to  construct  a  railway,  "  to  commence  at  some 
convenient  point  in  the  city  of  Brooklyn,  and  to  terminate  at  New- 
town, Queen's  county,  —  to  be  located  in  King's  and  Queen's 
counties,  and  its  length  to  be  about  twenty-five  miles  ;  "  there 
being  both  a  town  and  village  of  the  name  of  Newtown,  and  the 
boundary  of  the  town  being  also  the  boundary  of  the  city  of 
Brooklyn,  it  was  held,  that  the  natural  and  only  consistent  con- 
struction was,  to  regard  Newtown  as  the  village  of  that  name,  and 
thus  extend  the  railway  through  a  portion  of  both  counties  named, 
and  not  restrict  it  to  the  limits  of  the  city  of  Brooklyn.24 

18.  It  is  here  declared,  that  where  the  charter,  as  applied  to  the 
route  indicated,  defines  a  precise  line,  that  line  becomes  as  binding 
upon  the  company  as  if  it  formed  a  portion  of  the  charter  itself; 
and  that  where  a  map  is  filed  in   conformity  with  the   charter, 

■    I  ommonwealth  v.  Erie  &  North  East  Railw.,  27  Penn.  St.  339. 

21  Pontchartrain  Railw.  v.  Lafayette  &  Pont.  Railw.,  10  La.  Ann.  741. 

B  Hitchcock  v.  Danbury  &  Norwalk  Railw.,  25  Conn.  516. 

23  Plymouth  Railw.  Co.  v.  Colwell,  3(J  Penn.  St.  337. 

24  Mason  v.  Brooklyn  &  Newtown  Railw.  Co.,  35  Barb.  373. 
[*393] 


§  105.  LINE    OF    RAILWAY. RIGHT    OP    DEVIATION.  413 

which  does  not  embrace  the  entire  route  indicated  by  the  charter 
as  applied  to  the  subject-matter,  in  order  to  reconcile  the  apparent 
conflict,  the  map  may  be  regarded  as  intended  to  give  only  a  por- 
tion of  the  route ;  or  in  case  of  irreconcilable  conflict,  the  map 
must  yield  to  the  express  provisions  of  the  charter.24  The  distinc- 
tion between  the  application  of  terms  to  indicate  the  route  of  a 
railway  and  to  define  its  termini,  is  considerably  discussed  in  a 
case  in  New  Jersey.25 

11*.  A  power  to  change  the  location  of  a  railway,  on  account  of 
the  difficulty  of  construction  and  other  causes,  may  be  exercised 
at  any  time  before  the  construction  is  finished  at  the  particular 
point.26 

20.  The  lines  and  works  of  a  railway  are  sufficiently  indicated 
by  black  lines  upon  the  plan,  and  dotted  lines  around  them  to 
mark  the  limits  of  deviation.27  And,  where  the  deposited  plans 
and  sections  specify  the  span  and  height  of  a  bridge  by  which  the 
railway  is  to  be  carried  over  a  turnpike  road,  the  company  will 
*  not,  in  the  construction  of  the  bridge,  be  allowed  to  deviate  from 
the  plans  and  sections.28 

21.  Under  a  charter  which  fixes  the  terminus  of  a  railway  at  or 
near  a  certain  point,  a  large  discretion  is  conferred  upon  the  com- 
pany in  locating  their  road,  which  will  not  be  controlled  by  the 
courts,  unless  for  very  clear  excess,  or  where  bad  faith  is  shown. 
And  where  a  company  is  empowered  to  extend  their  line  from  a 
point  at  or  near  its  present  terminus,  "  in  Fall  River,  in  a  south- 
erly direction  to  the  line  of  Rhode  Island,"  a  location  starting 
from  a  point  on  the  line  2,475  feet  from  the  terminus  was  held 
authorized.29 

25  McFarland  v.  Orange  &  Newark  Horse-Car  Railw.  Co.,  2  Beasley,  17. 

26  Atkinson  v.  Mar.  &  Cin.  Railw.  Co.,  15  Ohio  (N.  S.),  21. 

V  Weld  v.  London  &  S.  W.  Railw.,  32  Beav.  340;  s.  c.  9  Jur.  (N\  S.)  510. 

28  Atty.-General  v.  Tewksbury  &  Great  Malvern  Railw.  Co.,  1  De  G.,  J.  & 
Sm.  423;  s.  c.  9  Jur.  (N.  S.)  951. 

29  Fall  River  Iron  Works  v.  Old  Colony  &  Fall  River  Railw.,  5  Allen,  221. 

[*394] 


11 1 


I '« INSTRUCTION    OF    RAILWAYS. 


PART  IV. 


SECTION    II. 


Distance,  how  measured. 


1     /    j  '&  afft  cted  '"i  subject-mattt  r. 

acts  t<>  b\  '■  by  rate  per 

mile. 

nil  rule  to  measure  by  straight  Urn  . 


4.  Same  rule  in  regard  to  turnpike-roads. 

5.  I!' iii    fixed  by  mile  means  full  mile;  no 

charge  for  fractions. 


•6.  1.  Questions  of  some  perplexity  sometimes  arise  in 
regard  to  the  mode  of  measuring  distance,  in  a  statute  or  contract. 
The  import  of  terms  defining  distance  will  be  sometimes  controlled 
by  the  context,  or  the  subject-matter.  In  one  case,1  where  the 
assignor  of  the  lease  of  a  public-house  in  London  covenanted  that 
he  would  not  keep  a  public-house  within  half  a  mile  from  the 
premises  assigned,  it  was  held  that  the  distance  should  be  com- 
puted by  the  nearest  way  of  access. 

■1.  And  contracts  to  be  paid  for  constructing  a  turnpike,  or  rail- 
way, a  given  price  by  the  mile,  would,  ordinarily,  no  doubt,  require 
an  admeasurement  upon  the  line  of  the  road.  It  was  held,  in  a 
late  case  in  Vermont,  that  in  such  cases  the  contractor  is  not 
entitled  to  compute  the  length  of  track,  and  thus  include  turnouts 
and  side-tracks.2  But  this  might  not  exclude  branch  lines  extend- 
ing any  considerable  distance  from  the  main  track. 

*  8.  But,  in  general,  the  English  courts  have  chosen  to  adhere 
to  the  rule  laid  down  by  Parke,  J.,  in  Leigh  v.  Hind,  that  distance 
is  to  bo  measured  in  a  direct  line,  through  a  horizontal  plane. 
Thus,  in  settlement  cases,  where  the  pauper  laws  provide  that  no 
person  shall  retain  a  settlement  gained  by  possessing  an  estate  or 
interest  in  a  parish  for  a  longer  time  than  he  shall  inhabit  "  within 
ten  miles  thereof,"  it  was  held,  that  the  distance  was  to  be  meas- 
ure] iu  a  direct  line  from  the  residence  to  the  nearest  point  of  the 
parish.3      And  the   twenty  miles   within   which   the   parties   are 

1   Leigh  v.  Hind,  !)  B.  &  C.  774;  s.  c.  17  Eng.  Comm.  L.  R.  495.   But  Parke, 
J.,  was  of  a  different  opinion,  and  said:   "I  should  have  thought  that  the  proper 
mode  of  measuring  the  distance  would  be  to  take  a  straight  line  from  house  to 
house,  in  common  parlance,  as  the  crow  flies.1' 
5  Barker  v.  Troy  &  Rutland  Railw.,  27  Vt.  766. 
Regina  v.  Saffron-Walden  Railw.,  9  Q.  B.  76. 
[*395] 


§  106.  DISTANCE,    HOW   MEASURED.  415 

required  to  reside,  in  certain  cases  affecting  the  jurisdiction  of 
the  county  courts,  by  the  recent  statute,4  is  to  be  computed  in  a 
direct  line,  without  reference  to  the  course  of  travel.5 

4.  And  where  a  turnpike  act  provided,  that  no  toll-gate  should 
be  erected  nor  any  toll  taken,  within  three  miles  of  B.,  and  the 
road  did  not  extend  to  B.,  but  connected  with  another  turnpike 
which  did,  and  also  a  public  road,  made  since  the  act  was 
passed,  it  was  held,  that  the  three  miles  should  be  measured  "  in 
a  straight  line  on  a  horizontal  plane,  and  not  along  any  of  the 
roads."  6 

5.  And  where  the  rate  of  fare  is  fixed  by  the  mile,  and  no  pro- 
vision made  for  fractions  of  a  mile,  the  company  can  only  charge 
the  prescribed  tariff  for  the  full  mile  traversed.7  But  the  English 
statute  8  provides  specially  for  fractions  of  a  mile. 

4  9  &  10  Vict.  c.  95,  §  128. 

6  Stokes  v.  Grissell,  14  C.  B.  678;  s.  c.  25  Eng.  L.  &  Eq.  336;  Lake  v. 
Butler,  5  El.  &  Bl.  92 ;  s.  c.  30  Eng.  L.  &  Eq.  264. 

6  Jewell  v.  Stead,  6  El.  &  Bl.  350 ;  s.  c.  36  Eng.  L.  &  Eq.  114.  Lord  Camp- 
bell, C.  J.,  said:  "I  am  of  opinion  that  the  distance  is  to  be  measured  by  a 
straight  line  upon  a  horizontal  plane."  Lake  v.  Butler,  supra,  lays  this  down  as 
a  general  rule.  Lord  Campbell,  C.  J.  :  "I  think  we  ought  to  adopt  that  mode 
which  is  most  convenient  and  most  certain.  If  the  distance  is  to  be  measured  by 
the  nearest  mode  of  communication,  uncertainty  will  be  introduced,  whether  it 
may  be  by  foot  way,  or  bridle  way,  or  carriage  way  ;  and  in  some  cases  the  distance 
must  be  travelled  by  all  the  three  modes  ;  and  in  others  by  a  tidal  river,  in  which 
case  the  distance  would  vary,  at  different  times  of  the  day ;  also  the  distance  by 
carriage  road  might  be  shortened,  or  lengthened,  by  a  new  road  being  made. 
But  if  the  other  mode  of  calculation  is  adopted,  no  uncertainty  will  arise." 

T  Rice  v.  Dublin  &  Wicklow  Railw.,  8  Ir.  Coin.  Law,  160. 

8  21  &  22  Vict.  c.  75,  §  1. 

[*395] 


41G 


CONSTRUCTION   OF   RAILWAYS. 


FART  IV. 


♦SECTION     III. 


Mode  of  Construction  ;  to  he  done  with  least  Damage. 


1.  Does  not  extend  to  form  of  the  road,  but 

the  mode  of  construction. 

2.  Special  provisions  of  act  not  controlled  by 

this  general  one. 


3.    Works  interfered  with,  to  be  restored,  for 
all  uses. 


§  107.  1.  It  has  been  held,  that  the  general  provisions  of  the 
Railway  Clauses  Consolidation  Act,  that  in  the  exercise  of  their 
powers,  the  company  shall  do  as  little  damage  as  possible,  and 
shall  make  satisfaction,  to  all  parties  interested,  for  all  damages 
sustained  by  them,  does  not  extend  to  the  form  of  constructing 
the  railway.  It  does  not  apply  to  what  is  done,  but  to  the  manner 
of  doing. 

2.  Hence,  if  by  other  sections  of  the  statute  or  special  act  the 
company  are  required  to  build  bridges  in  a  particular  form,  they 
may  still  do  so,  notwithstanding  it  may  cause  more  damage  to  the 
owners  of  land  than  to  build  them  in  some  other  form.1 

3.  And  where,  in  a  parliamentary  contract  between  the  pro- 
moters of  a  railway  and  the  proprietors  of  a  ropery,  it  was  stip- 
ulated that  the  railway  should  be  so  constructed,  that  when 
finished  the  level  of  the  ropery  should  not  be  altered,  nor  the 
surface  of  the  ropery  in  the  least  diminished,  it  was  held  the 
company  were  bound  to  restore  the  surface,  so  as  to  be  available 
for  all  purposes  to  which  it  might  have  been  applied  before  the 
construction  of  the  railway,  and  not  for  the  purposes  of  the  ropery 
only.2 

1  Regina  v.  The  East  &  W.  I.  Docks  and  B.  J.  R.,  2  El.  &  Bl.  466. 

2  Harby  v.  The  East  &  W.  I.  Docks  and  B.  J.  R.,  1  De  G.  M.  &  G.  290. 

[*396] 


§108. 


MODE   OF   CROSSING    HIGHWAYS. 


417 


•"SECTION    IV. 


Mode  of  crossing  Higluvays. 


1.  English  statutes  require  it  should  not  be  at 

grade. 

2.  Or  if  so,  that  gates  should  be  erected  and 

tended. 

3.  And  if  near  a  station,  railway  train  not  to 

exceed  four  miles  an  hour. 

4.  Cannot  alter  course  of  highway. 

5.  Right  to  appropriate  military  road. 

6.  Mandamus    does   not  lie  where   company 

have  an  election. 

7.  Railway  cannot  alter  highway  to  avoid 

building  bridge. 

8.  Extent  of  repair  of  bridge  over  railway. 

9.  Permission  to  connect  branches  with  main 

line  not  revocable. 


10.  Grant  to  build  railways  across  main  line 

implies  right  to  use  them   as   common 
carriers. 

11.  Railway  responsible  for  injury  by  falling 

into  culvert  when  covered  by  snow. 

12.  The  right  to  lay  line  across  railway  car- 

ries right  to  lay  as  many  tracks  as  are 
convenient  for  the  business. 

13.  Damages  for  laying  highway  across  rail- 

way. 

14.  Laying  highway  across  railway  at  grade. 

Company  not  estopped  by  contract  with 
former  owner  of  land. 

15.  Towns  not  at  liberty   to   interfere   ivith 

railway  structures. 


§  108.  1.  By  the  general  English  statutes  upon  the  subject  of 
railways,  it  is  provided,  "  that  if  the  line  of  the  railway  pass  any 
turnpike-road,  or  public  highway,  then  (except  when  otherwise 
provided  by  the  special  act),  either  such  road  shall  be  carried 
over  the  l'ailway,  or  the  railway  shall  be  carried  over  such  road, 
by  means  of  a  bridge."1 

2.  And  by  §  47  it  is  provided,  that  whenever  the  railway  does 
pass  any  such  road,  upon  a  level,  the  company  shall  maintain 
gates,  at  every  such  crossing,  either  across  the  highway,  or  the 
railway,  in  the  discretion  of  the  railway  commissioners,  and 
employ  suitable  persons  to  tend  the  same,  who  are  required  to  keep 
them  constantly  shut,  except  when  some  one  is  actually  passing 
the  highway,  or  railway,  as  the  case  may  be.2 

3.  And  where  a  railway  passes  a  highway  near  a  station,  on 


1  Railway  Clauses  Consolidation  Act,  §  46.  Mandamus  requiring  the  com- 
pany to  carry  their  road  over  a  highway,  by  means  of  a  bridge,  when  that  was 
the  only  mode  in  which  it  could  be  done,  according  to  the  level  of  the  line  of 
the  railway  at  the  time,  was  held  bad.  Southeastern  Railw.  v.  The  Queen,  17 
Q.  B.  485. 

"  A  road  on  which  toll-gates  are  erected  and  tolls  taken  is  a  turnpike  road. 
The  Northam,  B.  &  Roads  Co.  v.  London  &  Southampton  Railw.,  G  M.  &  W. 
428 ;   1  Railw.  C.  653 ;  Regina  v.  E.  &  W.  I.  Docks  Railw.  Co.,  2  El.  &  Bl.  466. 

27  [*397] 


11^  CONSTRUCTION    OP    RAILWAYS.  PART  IV. 

•  a  level,  the  trains  are  required  to  slacken  their  speed,  so  as  not 
tn  pass  the  Bame  at  any  greater  speed  than  four  miles  an  hour.3 

I.  The  right  to  raise  or  lower  highways,  in  the  construction  of 
a  railway,  does  not  authorize  the  company  to  change  the  course 
ot  the  highway,  even  with  the  consent  of  the  town  council,  and 
for  so  doing  the  company  were  held  liable  to  persons  who  had 
sustained  special  damage  thereby.4 

5.  The  right  to  use  "highways"  in  the  construction  of  plank 
roads,  contained  in  a  general  law,  does  not  extend  to  military 
roads  constructed  by  the  United  States,  while  the  state  was  a 
territory/'  but  the  legislature  may  grant  such  right,  by  the  charter 
of  the  company. 

6.  And  where  a  mandamus6  recited  that  the  railway,  which 
defendants  were  empowered  to  make,  crossed  a  certain  public 
highway,  not  on  a  level,  by  means  of  a  trench,  twenty  feet  deep, 
and  sixty-live  feet  wide,  through  and  along  which  the  railway 
had  been  carried,  and  the  highway  thereby  cut  through  and 
rendered  wholly  impassable  for  passengers  and  carriages  ;  and 
that  a  reasonable  time  had  elapsed  for  defendants  to  cause  the 
highway  to  be  carried  over  the  railway,  by  means  of  a  bridge,  in 
the  manner  pointed  out  in  the  statute,7  and  commanded  defend- 
ants to  carry  the  highway  over  the  railway,  by  means  of  a  bridge, 
in  conformity  with  the  statute,  particularly  specifying  the  mode:  it 
was  held,  that  it  not  being  otherwise  specially  provided  in  the 
company's  charter,  they  had,  by  the  general  act,  an  option  to  carry 
the  highway  over  the  railway,  or  the  railway  over  the  highway,  by 
a  bridge;  and  that  the  option  was  not  determined  by  the  facts 
alleged  in  the  writ,  and  the  judgment  of  the  Exchequer,  *  award- 
in-  the  v,  rit.  was  accordingly  reversed  in  the  Queen's  Bench. 

7.  Where  the  charter  of  a  railway   authorized  them,  by  con- 

rimilar  provisions,  in  regard  to  the  construction  of  railways  in 
this  country,  Beem  almost  indispensable  to  the  public  security.  But  the  rage  for 
cheap  iailv.  great,  that  nothing  of  the  kind  could  be  effected,  we  fear, 

at  pr<  - 

.   Providence  &  Wor.   Railw.,  2  R.I.  493.     It  is  the  duty  of  a 
railway  company  not  to  obstruct  public  mads,  where  they  intersect  the  railway- 
track,  either   by  stopping  a  train  or  otherwise;  and  the  company  must  take  the 
all  such  obstructions.     Murray  v.  Railw.  Co.,  10  Rich.  227. 
Attorney-General  v.  Detroit  &  Erie  I'lauk-Road  Co.,  2  Mich.  138. 
r,;'-  I       Southeastern  Railw.,  15Q.B.  313;  s.c.  6Eng.  L;&Eq.  214. 

7  8  and  .  20. 

[*3983  399] 


§  108.  MODE   OP   CROSSING    HIGHWAYS.  419 

sent  of  the  commissioners,  to  alter  a  highway  whenever  it  became 
necessary  in  order  to  build  the  railway  in  the  best  place,  and 
required  the  company  to  maintain  all  bridges  made  necessary  to 
carry  the  highway  over  the  railway:  it  was  held  that  the  com- 
pany had  no  power  to  alter  the  course  of  the  highway  in  order 
to  avoid  the  expense  of  building  a  bridge  ;  and  that  the  old  high- 
way was  still  subsisting,  notwithstanding  the  attempt  thus  to  lay 
out  a  substitute.8 

8.  And  where  a  railway  company,  under  their  statutory  powers, 
in  England,  carry  a  highway  over  their  road  by  means  of  a  bridge, 
the  company  is  bound  to  keep  both  the  bridge  and  the  road  and 
all  the  approaches  thereto  in  repair,  and  such  repair  includes  not 
only  the  structure  of  the  bridge,  but  the  superstructure,  and  every 
thing  requisite  to  put  the  highway  in  fit  condition  for  safe  use.9 

9.  Where  the  proprietors  of  land,  through  which  a  railway 
company  were  empowered  to  take  the  right  of  way,  had  the  right 
to  lay  branch  railways  upon  the  lands  adjoining,  and  to  connect 
them  at  proper  points  with  the  main  line,  so  as  not  to  endanger 
the  safety  of  persons  travelling  as  passengers  upon  the  railway, 
and  in  case  of  difference  in  regard  to  any  of  these  points,  the 
same  to  be  determined  by  two  justices  of  the  peace ;  but  the 
company  were  not  required  to  admit  any  such  branch  to  connect 
*  with  the*ir  line,  at  any  place  where  they  should  have  erected  any 
station   or  other   building  ;  it  was   held  that  the  consent  of  the 

8  Norwich  &  Worcester  Railw.  v.  Killingly,  25  Conn.  402.  Nor  have  the 
company  any  right  under  such  a  power  to  materially  and  essentially  change 
the  route  of  a  highway,  that  being  a  power  resting  solely  in  the  discretion  of  the 
municipal  authorities.  Warren  Railw.  Co.  v.  State,  5  Dutchcr,  3;);!.  See  also 
Veasie  v.  Penobscot  Railw.  Co.,  -49  Me.  119;  Eaton  v.  E.  &  N.  A.  Railw.,  59 
Me.  520. 

9  North  Staffordshire  Railw.  Co.  v.  Dale,  8  Eilis  &  Bl.  835.  But  where  the 
expense  of  keeping  a  bridge  in  repair  was  imposed  by  statute  upon  several  towns, 
and  a  railway  company,  jointly,  with  a  provision  that  the  municipal  authorities 
of  one  of  the  towns  shall  have  the  care  and  superintendence  of  the  same,  "and 
shall  employ  all  services  necessary  in  the  care  thereof',"  it  was  held  this  did  not 
impose  any  special  obligation  upon  that  particular  town,  in  regard  to  the  repairs, 
but  that  all  the  parties  still  remained  jointly  responsible  for  the  performance  of 
that  duty,  and  that  the  municipal  authorities  of  this  town  were  thereby  made  the 
agents  of  all  the  parties  thus  responsible;  and  that  therefore  one  of  the  parties 
could  not  maintain  an  action  against  the  town  for  an  injury  through  the  joint 
neglect  of  all  the  parties.  Maiden  &  Melrose  Railw.  v.  Charlestown,  8  Allen, 
245. 

[*400] 


4JH  \^TRUCTION    OF    RAILWAYS.  PART  IV. 

company  to  unite  with  the  line  at  a  station  was  not  in  the  nature 
of  a  License  and  could  not  he  revoked.10 

[0.  Ami  where  the  owners  or  occupiers  of  adjoining  land  had 
the  righl  to  build  railways,  and  to  cross  the  line  of  the  principal 
railway,  without  being  liable  to  toll  or  tonnage,  it  was  held  the 
owners  of  such  railways  might  use  them  as  common  carriers  of 
freight  and  passengers.11 

11.  It  bas  been  held  that  railway  companies  are  responsible  for 
injuries,  resulting  from  the  dangerous  state  of  highways,  caused  by 
their  own  works,  as  where  one  fell  into  a  culvert,  made  by  the 
company  at  a  highway  crossing,  to  prevent  the  accumulation  of 
the  watrr.it  being  invisible  at  the  time  by  reason  of  snow.12  So 
also  in  all  cases  where  the  defect  in  the  highway  is  caused  by  the 
works  of  the  railway  company,  the  latter  will  be  responsible  for 
all  injuries  in  consequence,  although  the  party  might  also  obtain 
redress  of  the  town  bound  to  maintain  the  highway.13 

li!.  A  railway  corporation  having  acquired  the  right  to  lay  its 
line  across  a  highway,  may  lay  and  maintain  as  many  tracks  as 
are  essential  to  the  convenient  transaction  of  its  business.14 

13.  A  railway  corporation  is  entitled  to  damages  for  land  taken 
by  laying  a  public  highway  across  its  line,  and  for  the  expense 
of  maintaining  signs  and  cattle  guards  at  the  crossing,  and  of 
flooring  the  same  and  keeping  it  in  repair  ;  but  not  for  any  in- 
creased liability  to  accidents,  for  increased  expense  of  ringing  the 
bell,  or  for  its  liability  to  be  ordered  by  the  county  commissioners 
to  build  a  bridge  for  the  highway  over  the  track.     And  in  assess- 

-.  in  such  a  case,  no  supposed  benefits  from  an  increase 
of  travel  on  the  railway  can  be  set  off  against  the  company.15 

14.  Under  the  revised  statutes  of  Massachusetts,  town  or  city 
authorities  have  no  power  to  lay  a  highway  across  a  railway,  at 
grade,  and  the  company  is  not  estopped  from  objecting  thereto  by 
any  agreement  with  the  former  owners  of  the  land  in  regard  to 
*  the  righl  of  way  to  be  used  by  them  at  the  point  where  the  high- 
way is  laid.''      Nor  can  such  authorities,  under  the  general  statutes 

10  Bell  v.  Midland  Railw.  Co.,  :;  De  G.  &  Jones,  673. 

"  Hughes  r   (  hest(  r  &  Holyhead  Railw.  Co.,  8  Jur.  (N.  S.)  221. 
15  Judson  o.  N.  V.  &  X.  Haven  Railw.  Co.,  29  Conn.  4:34. 
"  Gilletl  >■.  \\  estera  Railw.,  8  Allen,  560. 

i  v.  Hartford  &  New  Haven  Railw.,  14  Gray,  379. 

11  CM  Colony  &  Fall  River  Railw.  v.  County  of  Plymouth,  14  Gray,  155. 

•  i:  .V  .Maine  Railw.  v.  City  of  Lawrence,  2  Allen,  107. 
[<*401] 


109. 


RIGHTS    OP    TELEGRAPH    COMPANIES. 


421 


of  that  state,  lay  out  a  way  across  any  portion  of  the  land,  not 
exceeding  five  rods  in  width,  which  has  been  taken  by  a  railway 
company  for  their  line,  unless  permission  has  been  granted  by 
the  county  commissioners.17 

15.  Where  a  railway  company  had  rightfully  carried  its  line 
through  a  compactly  built  village,  by  means  of  a  deep  cut  run- 
ning under  the  principal  street,  which  had  to  be  carried  over  the 
cut  by  a  bridge,  and  had  built  a  station  supported  by  the  walls  of 
the  excavation  ;  it  was  held  that  the  town  had  no  right  so  to  con- 
struct a  drain  as  to  throw  the  water  of  the  street  into  the  cut  and 
thereby  undermine  its  walls,  even  if  the  railway  works,  at  that 
point,  had  intercepted  the  natural  drainage  and  there  was  no  other 
practicable  mode  of  remedying  the  evil,  except  at  greater,  although 
not  extravagant,  expense.18  It  was  accordingly  held  the  company 
were  entitled  to  an  injunction  against  the  town,  inhibiting  the  con- 
struction of  the  drain  in  that  mode. 


SECTION    V. 


Rights  of  Telegraph  Companies. 


1.  Right  to  "  pass  directly  across  a  railway," 

does  not  justify  boring  under  it. 

2.  Exposition   of  the   terms    "  under "   and 

"  across." 


3.  Erecting  posts  in  highway  a  nuisance  even 

if  sufficient  space  remain. 
n.  4.  Opinion  of  Crompton,  J. 


§  109.  1.  Where  a  telegraph  company  had  by  their  act  the  power 
to  pass  under  highways,  but  to  pass  "  directly  but  not  otherwise 
across  any  railway  or  canal,"  and  a  railway  was  laid  upon  the 
level  of  a  highway,  in  accordance  with  their  special  act,  it  was 
held  that  the  telegraph  company  could  carry  their  works  under 
the  highway  at  the  point  where  it  was  intersected  by  the  railway.1 
But  the  telegraph  company,  attempting  to  pass  under  the  railway 
in  such  a  manner  as  to  disturb  their  works,  was  held  liable  in 
trespass.2 

17  Commonwealth  v.  Haverhill,  7  Allen,  523. 

18  Danbury  &  Nbrwalk  Railw.  v.  Town  of  Nbrwalk,  37  Conn.  109. 

1  Southeastern  Railw.  v.  European  &  Am.  Tel.  Co.,  9  Exch.  363;  s.  c.  24 
Eng.  L.  &  Eq.  513. 

4  Post,  §§  130,  143,  164. 

[*401] 


422  CONSTRUCTION   OF   RAILWAYS.  PART  IV. 

•J.   Parke,  B.,  in  giving  judgment,  said,  "Across  seems  there- 
fore different   from  under,  and  the  power  to  carry  '  across  '  does 
not    enable  them   to  go  under.     It  may  he  that  this  prohibition 
Id  not  apply,  it'  the  railway  were  carried  over  a  highway,  at  a 
,;  height,  for  then  the  highwayand  railway  might  he  considered 
independent  of  each  other." 

3.   In  a   recenl    English  case 3  it  was  decided,  that  a  telegraph 
ipauy,  which  erected  posts  in  any  portion  of  the  highway,  al- 
though  not   in  the  travelled  portion  of  it,  whereby  the  way  is  ren- 
dered i v  respect  less  commodious  to  the  public  than  before,  is 

•guilty  of  committing  a  nuisance  at  common  law;  and  the  fact 
that  the  jury  find  that  a  sufficient  space  for  the  public  use  re- 
mained unobstructed,  will  not  afford  any  justification,  unless  the 
act  is  done  by  legislative  permission.4 

1  Reg.  v.  United  Kingdom  Electric  Telegraph  Company,  9  Cox  (C.  C),  174; 

&  V.  73;  8  Jur.  (N.  S.)  1153. 
4  The  case  is  of  so  much  importance  that  we  have  ventured  to  insert  the  lead- 
in,:  opinion  on  the  final  hearing  in  full  bench. 

Crompton,  J.     "The  defendants  were  indicted  for  erecting  their  posts  on  a 

high  road,  so  as  to  obstruct  the  public  in  the   use  thereof,  and  we  determined 

re  giving  judgment  to  hear  the  case  of  Regina  v.  Train,  thinking  it  possible 

that  t!ie  same  question  might  there  arise,  or  that  something,  at  all  events,  throw- 

ghl  upon  it  might  be  elicited  during  its  progress.  Having  heard  that  case, 
there  is  nothing  to  prevent  our  giving  judgment  without  further  delay.  My 
brother  Mm  tin  laid  down  two  propositions,  and  the  question  is,  whether  either 
of  tlit-in  constitutes  a  misdirection.  The.  first  of  these  propositions  was  as  follows: 
'  In  the  case  of  an  ordinary  highway,  although  it  may  be  of  a  varying  and  unequal 
width,  running  between  fences,  one  on  each  side,  the  right  of  passage  or  way 
prima  facie,  and,  unless  there  be  evidence  to  the  contrary,  extends  to  the  whole 
Bpace  between  the  fences ;  and  the  public  are  entitled  to  the  use  of  the  entire  of 
it  as  the  highway,  and  are  not  confined  to  the  part  which  may  be  metalled  or 
kept  in  order  for  the  more  convenient  use  of  carriages  and  foot  passengers.' 
this  Beems  to  us  a  very  proper  direction.  It  is  urged  by  Mr.  O'Malley 
that  this  ruling  is  not  applicable  to  a  place  where  there  is  a  considerable  portion 

eensward  on  either  side  of  the  metalled  road,  which  cither  the  owner  of  the 
adjoining  freehold  or  the  lord  of  the  manor  would  be  entitled,  if  he  thought 
proper,  to  enclose.  This  is  the  first  of  two  objections  taken  on  behalf  of  the 
deii  ndants.  Bui  it,  seems  to  me  that  my  brother  Martin  carefully  guards 
against  that.  He  .-ays,  thai  prima  facie  the  space  between  the  fences  is  to  be 
as  the  highway  ;  and  this  seems  to  be  in  accordance  with  the  judgment  of 
I.  rd  Tenterden,  C.  J.,  in  Rex  v.  Wright,  3  B.  &  Ad.  681,  where  he  says:  'I 
Bin  strongly  of  opinion,  when  I  see  a  space  of  fifty  or  sixty  feet  through  which 
a  roa'l  passes,  between  enclosures  set  out  under  an  act  of  parliament,  that,  unless 

•  ntr.iry  be  Bhown,  the  public  are  entitled  to  the  whole  of  that  space,  though, 

[*402] 


110.  DUTY   IN    REGARD   TO    SUBSTITUTED   WORKS.  423 

^SECTION    VI. 
Duty  in  regard  to  substituted  Works. 


1.  Bound  tn  repairbridge  substituted  for  ford, 

or  to  earn/  highway  over  railway. 

2.  The  mime  rule  has  been  applied  to  drains, 

substituted  for  otlu  rs. 


3.  The,  extent   of  this   duty   as   applied  to 
bridge  and  approaches. 


§  110.  1.  Where  a  public  company,  as  a  navigation  company, 
under  the  powers  conferred  by  the  legislature,  destroyed  a  ford 

perhaps,  from  economy,  the  whole  may  never  have  been  kept  in  repair.1  The 
same  principle  is  involved  in  the  decision  in  Williams  v.  Wilcox,  and  my  brother 
Martin  seems  to  have  laid  down  the  law  in  unison  with  these  cases.  lie  says, 
'that  prima  facie,  and  in  absence  of  evidence  to  the  contrary,  the  public  are 
entitled  to  the  right  of  passage  over  the  whole,  and  are  not  confined  to  that  part 
which  is  metalled  for  the  better  convenience  of  travellers  and  traffic.'  Mr. 
O'Malley  was  unable,  when  invited,  to  say  to  what  definite  portion  of  the  road, 
metalled  or  otherwise,  he  held  the  public  to  be  entitled.  He,  however,  contended 
that  the  posts  might  have  been  erected  on  what  was  in  fact  no  part  of  the  high- 
way, such  as  a  rock,  or  something  of  that  kind,  which  might  occupy  part  of  the 
space  between  the  fences,  but  over  or  across  which  no  road  could  possibly  exist. 
But  this  would  not  be  a  part  of  the  highway  any  more  than  a  house  similarly 
placed,  built  before  the  dedication  of  the  road.  We  think,  therefore,  on  the  first 
point,  the  direction  of  the  learned  judge  was  correct,  and  that  the  right  of  the 
public  extends  over  the  entire  highway. 

"The  second  proposition  laid  down  by  the  learned  judge  is  a  wider  one,  and 
it  remains  to  be  seen  whether  it  amounts  to  a  misdirection.  It  is,  '  that  a  per- 
manent obstruction  erected  on  a  highway,  placed  there  without  lawful  authority, 
which  renders  the  way  less  commodious  than  before  to  the  public,  is  an  unlawful 
act,  and  a  public  nuisance  at  common  law;  and  that  if  the  jury  believed  that  the 
defendants  placed,  for  the  purposes  of  profit  to  themselves,  posts,  with  the  object 
and  intention  of  keeping  them  permanently  there,  in  order  to  make  a  telegraphic 
communication  between  distant  places,  and  did  permanently  keep  them  there, 
and  the  posts  wen-  of  such  size  and  dimensions  and  solidity  as  to  obstruct  and 
prevent  the  passage  of  carriages,  and  horses,  or  foot  passengers  upon  the  parts 
of  the  highway  where  they  stood,  the  jury  ought  to  find  the  defendants  guilty 
upon  this  indictment;  and  that  the  circumstance  that  the  posts  were  not  placed 
upon  the  hard  or  metalled  part  of  the  highway,  or  upon  a  footpath  artificially 
formed  upon  it,  or  that  the  jury  might  think  that  sufficient  space  for  the  public 
traffic  remained,  are  immaterial  circumstances  as  regards  the  Legal  right,  and  do 
not  affect  the  right  of  the  crown  to  the  verdict.'  Tlus  appeals  to  us  also  to  be 
substantially  a  proper  direction,  inasmuch  as  the  real  question  is,  whether  there 
was  a  practical,  as  distinguished  by  myself  in  Regina  v.  Russell,  from  a  mathe- 

[*403] 


424  CONSTRUCTION    OP    RAILWAYS.,  PART  IV. 

nd  substituted  a  bridge,  it  was  held,  that  they  were  liable  to  keep 
the  bridge  in  repair.3  So*,  too,  where  such  company  cut  through 
u  highway,  rendering  a  bridge  necessary  to  carry  the  highway  over 
the  cut,  tlif  company  are  bound  to  keep  such  bridge  in  repair.2 

2.  So,  where  a  navigation  company  had  power  to  use  a  public 
drain  by  substituting  another,  or  others,  it  was  held  that  the  com- 
pany were  bound  to  keep  in  repair  the  substituted  drains,  as  well 
as  to  make  them.3 

3.  Under  the  Epglish  statute,4  where  the  company  carries  the 
highway  by  means  of  a  bridge,  over  the  railway,  it  is  bound  to 
maintain  the  bridge,  and  all  the  approaches  thereto  in  repair ;  and 
such  repair  includes  not  only  the  structure  of  the  bridge,  and  the 
approaches,  but  the  metalling  of  the  road  on  both.5     But  this  will 

matica]  nuisance.  My  brother  Martin  appears  distinctly  to  have  raised  that 
point,  by  saying  that  the  posts  must  not  be  of  such  size,  dimensions,  and  solidity 
as  to  obstruct  and  prevent  the  passage  of  carriages,  and  horses,  and  foot  passen- 
gers at  all.  In  Regina  v.  Russell,  the  jury  found  there  was  no  practical  obstruc- 
tion :  but  where  there  is  a  practical  obstruction  on  a  highway,  by  which  the 
public  are  prevented  from  using  it,  that  is  a  nuisance  according  to  all  definitions 
of  the  word,  and  it  makes  no  difference  whether  or  not,  enough  be  still  left  unob- 
Btructed  for  the  use  of  the  public;  or  whether  the  obstruction  is  placed  on  that 
part  of  the  road  which  is  neither  metalled  nor  repaired  for  the  purpose  of  traffic. 
In  Rex  r.  Wright,  Lord  Tcnterden  laid  it  down  that  the  public  are  entitled  to  the 
entire  space  on  either  side  of  the  highway,  as  he  says,  for  the  benefit  of  air  and 
sun.  We  must  take  it  now  that  the  jury  found  the  defendants  guilty  upon  these 
facts,  and  that  the  posts  were  of  such  size  and  solidity  as  to  create  an  obstruc- 
tion, and  amount  to  a  nuisance.  It  was  further  objected  by  Mr.  O'Malley  that 
certain  of  the  posts  appeared  actually  to  have  stood  upon  parts  of  the  road  which 
wire  inaccessible  to  travellers ;  but  supposing  this  to  be  the  case,  it  would  be 
no  use  to  the  company  to  have  these  few  isolated  posts  left  standing  at  different 
spots  along  the  line  of  road;  and  if  they  wished  to  keep  them,  they  should  have 
contended  at  tin-  trial  that  some  of  these  posts  did  not  come  within  the  rule 
laid  down  by  the  learned  judge.  We  think,  therefore,  that  with  respect  to  these 
few  posts,  which  may  possibly  have  been  excepted  from  the  rule,  it  would  be  use- 
■  grant  a  rule.1' 

1  Rex  v.  Inhabitants  of  Kent,  13  East,  220;  Rex  v.  Inhabitants  of  Lindsey, 
II  Last,  317. 

-  Rex  r  Kerrison,  3  M.  &  Sel.  526.  This  duty  may  be  enforced  by  indict- 
ment. Regina  o.  Ely,  19  L.  J.  (M.  C.)  223.  And  the  same  obligation  rests 
upon  tl„.  assignees  of  the  company.  Penn.  Railw.  Co.  v.  Duquesne  Borough, 
4G  Penn.  St.  223. 

•  Priestly  r.  Foulds,  2  Railw.  C.  422;  2  Man.  &  Gr.  175. 
-  9  Vict.  <■.  20. 

'  Newcastle,  &c.  Turnpike  Co.  v.  North  Staf.  Railw.,  5  H.  &  N.  100. 

[*404] 


§  111.  NATURE   OP   WORKS.  —  MODE   OP   CONSTRUCTION.  425 

not  include  the  road  beyond  where  it  may  properly  be  regarded  as 
forming  an  approach  to  the  bridge.6  And  the  same  rule  obtains 
here.  In  White  v.  Quincy,7  it  was  held  the  duty  of  the  company 
as  to  repair  extended  to  the  whole  structure,  which  they  had  found 
it  necessary  to  build  to  effect  their  purpose  ;  even  where  it  ex- 
tended beyond  the  boundaries  of  the  location  of  their  line. 


♦SECTION     VII. 

Construction  of  Charter  in  regard  to  Nature  of  Works,  axel  Mode  of 

Construction. 

§  111.  There  are  some  cases  in  regard  to  the  construction  of 
railway  works,  and  their  requisite  dimensions,  which  have  come 
under  the  consideration  of  the  courts,  and  where  the  decisions 
are  of  little  precedent,  for  other  cases,  not  altogether  analogous, 
and  on  that  account  not  deserving  an  extended  analysis,  but 
which  nevertheless  we  scarcely  feel  justified  in  wholly  omitting 
here.1 

6  W.  &  L.  Railw.  v.  Kearney,  12  Ir.  Com.  L.  224;  Fosberry  v.  Waterford 
&  Limerick  Railw.,  13  Ir.  Com.  Law,  494 ;  London  &  North  Western  Railw. 
Co.  v.  Skerton,  5  B.  &  S.  559. 

7  97  Mass.  430.     See  also  Titcomb  ».  Fitchburg  Railw.,  12  Allen,  254. 

1  Attorney-General  v.   London  and   Southampton   Railw.,  9  Sim.  78;  s.  c. 

1  Railw.  C.  302.  This  case  is  in  regard  to  the  width  of  a  road  under  a  railway 
bridge.  Manchester  &  Leeds  Railw.  v.  Reg.  (in  error)  3  Q.  B.  528 ;  s.  c. 
3  Railw.  C.  633.  The  foot-paths  are  not  to  be  regarded  as  any  part  of  the 
requisite  width  of  the  bridge.  Reg.  v.  Rigby,  14  Q.  B.  687  ;  s.  c.  6  Railw.  C. 
479;  Reg.  v.  London  &  Birmingham  Railw.,  1  Railw.  C.  317.  This  is  a  case  in 
regard  to  the  width  of  a  bridge  over  a  highway.  Reg.  v.  Birmingham  &  Glouces- 
ter Railw.,  2  Q.  B.  47  ;  2  Railw.  C.  694,  which  is  a  case  in  regard  to  the  width 
of  the  approaches  to  a  bridge  across  a  railway.     Reg.  v.  Eastern  ( !ounties  Railw., 

2  Q.  B.  347,  569  ;  s.  c.  3  Railw.  C.  22,  as  to  the  right  to  lower  a  strict,  in  order 
to  obtain  the  requisite  height  under  a  bridge,  notwithstanding  the  provisions  of 
the  local  paving  act.  Reg.  v.  Sharpe,  8  Railw.  ('.  33,  as  to  the  right  to  erect  a 
bridge  at  a  different  angle  from  the  former  road.  Where  a  special  act  required 
a  company  to  strengthen  a  bridge  described  in  the  act,  held  that  they  might,  never- 
theless, pull  down  the  old  bridge  and  build  a  new  one.  Wood  v.  North  Stafford- 
shire Railw.,  1  McNagh.  &  G.  278;  Rex  v.  Morris-,  1  B.  &  Ad.  441,  as  to  making 
a  railway  on  a  turnpike  road.  A  turnpike  road,  having  power  to  take  tolls  upon 
any  way  leading  out  of  their  road,  may  demand  tolls  of  passengers  crossing  their 
road  upon  a  railway  granted  subsequently.     Rowe  v.  Shilson,  4  I>.  A:  Ad.  726. 

[*405] 


CONSTRUCTION    OF   RAILWAYS.  PART  IV. 


♦SECTION    VIII. 

-    ( 'onbract.  —  Money  Penalties.  —  Excuse  for  Non- 
Performance. 


istruction  assume  unusual 

US. 

i  eng 

■i  pi  milli,  s,  liquidated  damages.   Full 

I.  Exausesfor  non-performance. 
',    r     ilty  not  incurred,  unless  upon  strictest 
Hon. 


6,  7.   Contractor  not  entitled  to  any  thing  for 

I  a  irl -performance, 
n.  2.  Proper  construction  of  the  terms  used  in 

these  contracts. 
8.    Contract  for  additional  compensation  must 

be  strictly  performed. 


§112.  1.  As  the  time  within  which  such  works  are  to  be  ac- 
complished is  often  limited  in  the  act,  and  as  the  manner  in  which 
the  work  is  done  is  of  the  greatest  possible  importance  to  the 
public  safety,  the  law  sanctions  contracts  for  such  undertakings, 
in  forms  not  only  unusual,  but  which  might  not  be  strictly  binding 
perhaps  in  the  case  of  ordinary  contracts.  For  instance,  it  is  not 
uncommon  for  the  contract  to  impose  penalties  upon  the  contractor 
for  slight  deviations  from  the  terms  of  agreement,  and  to  secure  to 
the  company  the  absolute  right  to  put  an  end  to  the  contract, 
whenever  they  or  their  engineer  are  dissatisfied  with  the  mode  in 
which  the  work  is  done,  or  the  progress  made  in  it. 

_.  And  it  is  almost  universal,  in  these  contracts  in  this  country, 
to  refer  the  quality  and  quantity  of  the  work  done,  and  the  con- 

A\  here  :i  railway  company,  in  the  course  of  construction,  turned  a  stream  of 
water,  which  by  their  charter  they  might  do,  restoring  it  to  its  former  state,  as 
near  as  practicable,  and  the  new  channel  was  properly  guarded,  as  far  as  could 
he  perceived,  at  the  time  of  turning  it,  it  was  held,  that  the  company  were  not 
obliged  thereafter  to  watch  the  operation  of  the  water  and  take  precautions  to 
prevent  its  encroaching  upon  the  adjoining  lands.  Norris  v.  Vt.  C.  Railw.,  28 
Vt,  99.  See  also  Fitchburg  Railw.  v.  Grand  Junction  Railw.  &  Depot  Co., 
1  Aim.  198,  when-  a  question  in  regard  to  apportioning  the  expense  of  a  work 
done  by  the  plaintiff,  for  the  mutual  benefit  of  the  parties,  in  conformity  with 
statutory  provisions,  is  considered,  and  numerous  exceptions  on  the  part  of  the 
defendant  are  overruled  by  the  court.  The  most  important  of  these  exceptions, 
and  which  the  court  regarded  as  no  sufficient  ground  of  defence,  are:  that  the 

''"' issioner  appointed  under  the  statute,  in  supervising  the  work  and  appor- 

tioning  the  cost,  conducted  with  partiality  towards  the  plaintiff,  and  under  his 
undue  influence ;  and  that  the  value  of  the  defendant's  property  and  franchise 
was  diminished  by  the  work,  and  that  of  the  plaintiff's  increased  thereby. 

[*40U] 


§112.  PENALTIES.  —  EXCUSE   FOR   NON-PERFORMANCE.  427 

sequent  amount  of  payments,  to  be  made  from  time  to  time,  to 
the  absolute  determination  of  an  engineer  employed  by  the  com- 
pany.1 

3.  The  penalties  which  these  contracts  provide,  either  absolutely, 
*  or  in  the  discretion  of  the  company's  engineer,  for  delay  in  the 
"work,  are  to  be  regarded,  commonly,  in  the  nature  of  liquidated 
damages.2     To  entitle  the  party  to  recover  for  work  done  upon 

1  Ranger  v.  Great  Western  Railw.,  13  Sim.  3G8 ;  1  Railw.  C.  1  ;  s.  c.  5  Ho. 

Lds.  72 ;  3  id.  298 ;  ante,  §  105.  And  where  the  contract  refers  the  umpirage 
to  the  company's  engineer,  by  name,  "if  and  so  long  as  he  shall  continue  the 
company's  principal  engineer,"  it  was  held  that  the  reference  was  not  terminated 
by  the  amalgamation  of  this  company  with  another,  the  same  engineer  being 
continued  on  the  old  line,  but  not  as  the  principal  engineer  of  the  amalgamated 
company.     Wansbeck  Railw.  in  re,  Law  Rep.  1  C.  P.  269. 

2  Ranger  v.  Great  Western  Railw.,  5  Ho.  Lds.  72 ;  s.  c.  27  Eng.  L.  &  Eq.  61. 
In  regard  to  the  penalties  given  by  the  contract,  it  is  said  here  by  the  Lord  Chan- 
cellor :  "  All  the  circumstances  which  have  been  relied  on  in  the  different  reported 
cases,  as  distinguishing  liquidated  damages  from  penalty,  are  to  be  found  here. 
The  injury  to  be  guarded  against  was  one  incapable  of  exact  calculation.  The  sum 
to  be  paid  is  not  the  same  for  every  default,  for  that  which  should  occasion  small 
as  for  that  which  should  cause  great  inconvenience,  but  one  increasing  as  the 
inconvenience  would  become  more  and  more  pressing;  and,  finally,  the  pay- 
ments are  themselves  secured  by  the  penalty  of  a  bond ;  and  this  is  hardly  con- 
sistent with  the  notion  that  the  payments  secured  were  themselves  only  penal 
sums  to  secure  something  else.  For  these  reasons,  I  think  it  clear  that  these 
payments,  though  called  penalties,  are  in  truth  liquidated  damages,  agreed  on 
by  the  parties,  and  which  the  company  might  set  off  against  the  demand  of  the 
appellant  upon  them  under  the  contract.  But  then  the  appellant  contends  that 
the  company  never  had  a  title  to  recover  these  penalties,  because  the  delays  in 
respect  of  which  they  claimed  were  produced  by  the  harassing  and  vexatious 
conduct  of  the  respondents  themselves,  or  their  agents.  It  is  sufficient  on  this 
head  to  say,  that  the  appellant,  in  my  judgment,  wholly  fails  to  make  out,  in 
point  of  fact,  the  proposition  for  which  he  contends.  The  only  penalties  actually 
deducted  are  200/.  for  five  weeks'  delay  in  completing  the  headings  of  tunnels 
1  and  3  in  contract  1  B,  and  20/.  for  delay  in  the  works  of  the  Avon  bridge. 
There  is  no  doubt  but  that  these  sums  were  due,  unless  the  appellant  could 
relieve  himself  by  showing  that  the  delay  had  been  forced  on  him  by  the  com- 
pany itself.     The  evidence  altogether  fails  to  satisfy  me  of  this." 

Where,  in  a  contract  between  the  original  contractors  for  building  a  railway 
and  the  sub-contractors,  it  was  provided,  that  the  work  should  be  subject  to  the 
supervision  and  control  of  the  engineer  of  the  company,  anil  that  lie  should 
make  monthly  estimates,  four-fifths  of  which  "value"  should  be  paid  to  the  sub- 
contractors; and  when  the  work  was  completed,  a  final  estimate;  the  monthly 
and  final  estimates  as  to  the  quantity,  character,  and  value  of  the  work  done, 
should  be  conclusive  between  the  parties  ;  and  that  if  the  contractor  should  not 
truly  comply  with  his  part  "t  the  agreement,  or  in  case  it  should  appear  to  the 

[*407] 


CONSTRUCTION    OF    RAILWAYS.  PART  IV. 

struction  contracts,  he  must  show,  either  that  he  has  performed 
the  I  >rding  to  the  contract,  or  that  the  other  party  has 

waived  strict  performance,  or  hindered  it.3 

I.  Bui  the  party  may  excuse  full  performance  by  showing  that 
he  was  prevented  by  an  injunction  out  of  Chancery  at  the  suit  of  a 
third  party.4  Or,  thai  the  parties  had  entered  into  a  new  contract 
for  the  same  work,  upon  different  terms.0 

5.  Where  the  work  was  suspended  at  the  request  of  the  com- 
pany, with  the  view  to  a  new  location,  the  company  agreeing  to 
pay  the  plaint  ill'  $750  by  way  of  damages,  if  the  work  should  not 
I"'  resumed  within  two  years,  and,  if  it  was,  the  plaintiff  to  pro- 

^ 1  with   the  work  at  the  prices  stipulated,  upon  those  sections 

uot  altered  ;  the  route  being  altered  as  to  some  of  the  sections, 

engineer  that  the  work  did  not  progress  with  sufficient   speed,  .the  other  party 

have  power  to  annul  the  contract;  and  the  unpaid  portion  of  the  work 
was  i>  be  forfeited  by  the  sub-contractor  and  become  the  property  of*  the  other 
party  ;  held,  that  the  award  of  the  engineer  declaring  the  work  forfeited,  was  con- 
clusive, .and  binding  on  the  sub-contractor;  that  the  action  of  the  sub-contractor 
apon  the  contract  was  in  affirmance  of  the  contract,  and  that  he  could  not  there- 
fore impeach  its  stipulations.     That  the  term  "value,"  as  used  in  the  contract, 

be  distinguished  from  the  term  "price,"  fixed  for  the  different  classes  of 

iml  that  the.  engineer,  in  making  monthly  estimates,  had  a  right  to  deduct 
from  the  amount  of  work  done  sufficient  to  bring  it  to  the  average  of  all  the  work 
to  be  done,  and  is  not  bound  to  allow  the  sub-contractor  the  price  stipulated  in 
the  contract,  for  work  of  this  description.  If  the  company  withheld  unjustly 
funds  due  the  sub-contractor,  they  could  not  fairly  take  advantage  of  the  forfeit- 

lared  for  want  of  prosecution  of  the  work.     But  the  retention  of  the  20 

ut  in  case  of  forfeiture,  is  intended  as  the  measure   of  reparation  for  the 

failure  to  perform  the  work  according  to  the  contract,  and  not  as  a  mere  penalty. 

ymenl  after  the  forfeiture,  by  one  of  the  original  contractors,  of  the  hands 
who  bad  been  employed  on  the  works  by  the  sub-contractor,  and  furnishing 
money  to  carry  on  the  work,   is  not  a  waiver  of  the   forfeiture,   especially  if  he 

en  ignoranl  that  the  work  had  been  forfeited.  Faunce  v.  Burke,  16  Penn. 
In  English  contracts  for  constructine;  railways,  it  is  common  to  provide 
for  the  use  of  the  contractor's  plant,  in  case  of  the  company  putting  an  end  to 
the  contract,  and  for  the  sale  of  the  same,  and  crediting  the  money  to  the  con- 
tractor. Bui  this  construction  will  not  be  adopted  unless  loss  or  expenses  have 
oned,  for  which  the  contractor  is  responsible.  Garrett  v.  Salisbury 
&  1>  reel  .1.  Railw.,  Law  Rep.  2  Eq.  358. 

.■ews  r.  The  (  ity  of  Portland,  35  Me.  475.     And  it  was  held  here,  that 

lyment,  under  the  contract,  after  the  contractor  had  failed  in  strict  per- 
formance, was  no  waiver,  unless  the  failure  was  known  to  the  employer  at  the 
tine-  of  p  lymenf . 

4  \Vh Hi  Id  v.  Zellnor.  24  Miss.  663. 

1   Howard  v.  The  Wilmington  &  Suscpiehannah  Railw.,  1  Gill,  311. 

[*408] 


§112.  PENALTIES. — EXCUSE   FOR   NON-PERFORMANCE.  429 

upon  which  the  defendants  resumed  within  the  two  years,  employ- 
ing others  to  do  the  work,  without  giving  notice  to  plaintiff;  held 
that  the  plaintiff  could  not  recover  the  damages  agreed,  as  the 
work  was  resumed  within  the  two  years,  hut  that  the  plaintiff  was 
entitled  to  damages  for  not  being  employed  to  do  the  work.6 

6.  Where,  by  the  terms  of  the  contract,  a  proportion  of  the  sum 
*  earned  is  to  be  paid  monthly,  and  the  remainder  reserved,  as 
security  for  the  fulfilment  of  the  contract,  it  was  held,  that  nothing 
was  due  till  the  day  of  payment,  which  could  be  attached  by  trus- 
tee process.7 

7.  And  where,  in  such  case,  the  company  have  the  power  to 
determine  the  contract,  and  the  reserved  fund  is  thereby  to  be 
forfeited,  and  the  company  do  so,  after  the  contractor  has  worked 
one  month  and  part  of  another,  and  has  received  the  proportion  of 
payment  for  the  first  month,  it  was  held  nothing  was  due  to  the 
contractor.8 

8.  Where  a  railway  company,  after  making  a  contract  for  the 
construction  of  its  road,  became  embarrassed,  and  was  unable  to 
make  payments  to  the  contractor,  and  the  president,  who  was  a 
stockholder,  and  extensively  interested  in  the  success  of  the  enter- 
prise, made  an  additional  agreement  with  the  contractor  that  he 
would  give  him  his  notes  to  the  amount  of  $10,000,  if  the  work 
were  completed  by  a  day  named,  it  was  held,  that  he  was  not  liable 
upon  the  agreement  unless  the  contractor  performed  his  part  of 
the  agreement  by  the  day  named.  The  notes  were,  by  the  terms 
of  the  agreement,  to  go  in  part  payment  of  what  was  due  from  the. 
company,  and  the  new  agreement  was  not  to  affect  the  subsisting 
contract  with  the  company.9 

6  Fowler  v.  Kennebec  &  Portland  Railw.,  31  Me.  197.  The  construction  here 
adopted  seems  not  very  satisfactory. 

7  Williams  v.  Androscoggin  &  Kennebec  Raihv.,  30  Me.  201. 

8  Hennessey  v.  Farrell,  4  Cush.  267. 

9  Slater  v.  Emerson,  19  How.  (U.  S.)  22-4. 

[*409] 


//<  <l  iii  contract. 
4.  If  the  company  have  the  benefit  oj   work 
are  liable. 


CONSTRUE  DION    OF    RAILWAYS.  PART  IV. 

SECTION     IX. 
Form  of  Execution.  —  Extra  Work.  —  Deviations. 

I     V.  particular  form  of  contract  requisiU  pany,  unless  done  upon  the  terms  speci 

ally. 

.  ,;  .-s  n  quirt  waits  of  the  charti  r 
must  o  with. 

/■/.  cannot  be  recovered  ofthi  com- 

§113.  1.  No  particular  form  of  contract  is  requisite  to  bind  the 
company,  unless  where  the  charter  expressly  requires  it.1  And 
although  there  seems  still  to  be  a  failing  effort  in  the  English 
courts  to  maintain  the  necessity  of  the  contracts  of  corporations 
being  under  seal,2  it  is  certain  that  the  important  business  trans- 
actions of  daily  occurrence,  in  both  that  country  and  here,  where 
no  such  formality  is  resorted  to  by  business  corporations,  in  mat- 
ters of  contract,  and  where  to  look  for  any  such  solemnity  would 
be  Little  less  than  absurd,  almost  of  necessity  drive  the  courts  of 
England  to  disregard  the  old  rule  of  requiring  the  contracts  of 
corporations  to  be  made  under  the  corporate  seal.3 

'  Post,  H  130,  143,  164.  Corporations  cannot  enter  into  partnerships,  but 
two  or  more  corporations  may  become  jointly  bound  by  the  same  contract. 
Marine  Bank  of  <  'hicago  v.  Ogden,  29  111.  248. 

-  Mayor  of  Ludlow  v.  Charlton,  G  M.  &  W.  815.    But  see  Beverly  v.  Lincoln 

Gaa  Light   &  Coke  Co.,  0  Adol.  &  Ellis,  829;  Dunstan  v.  The  Imperial  Gas  L. 

8  B.  &  Ad.  125.    Tindal,  C.  J.,  in  Gibson  v.  East  India  Co.,  5  Bingham  (N. 

262,  by  which  it  seems  that  the  English  courts  except  from  the  operation  of 

the  rule  only  such  transactions  of  business  corporations  as  could  not  reasonably 

be  expected  to  be  done  under  seal.     But  see  Bank  of  Columbia  v.  Patterson,  7 

Cranch,  299,  and  2   Kent.  Comm.  289,  291,  and  notes,  where  it  is  said  the  old 

rule  is  condemned,  and  English  and  American  cases  cited  and  commented  upon. 

§  1  13;   United  States  Bank  v.  Dandridge,  12  Wheat.  64;  Bank  of  the  Me- 

tr<  polifl  v.  Guttschlick,  14  Pet.  19;  Norwich  &  Worcester  Railw.  v.  Cahill,  18 

t  lonn.   1H  :    San  Antonio   v.  Lewis,  9  Texas,  69.      See,  also,  Weston  v.  Bennett, 

12  Barbour,  196;  Rathbone  v.  Tioga  Navigation  Co.,  2  Watts  &  Serg.  74. 

J<-  v.  The  London  &  Blackwall  Railw.,  5  Exeh.  412  ;  s.c.  6  Railw.  C.590. 
It  is  said  here  thai  a  contract,  to  be  binding  on  a  corporation  when  not  under  seal, 
in -i-i  be  one  of  necessity,  or  ot  too  frequent  occurrence,  or  too  trivial,  to  be  made 
under  seal.  In  a  recent  case  in  the  Court  of  Exchequer,  Williams  v.  Chester  & 
Holyhead  Railw.,  15  Jur.  828;  8.  c.  o  Eng.  L.  &  Eq.  197,  Martin,  B.,  thus  com- 
ment- upon  the  rule  of  evidence  in  regard  to  implied  contracts  of. corporations, 
ns  dealing  with  these  companies  should  always  bear  in  mind,  that  such 

[*410] 


113.  EXECUTION.  —  EXTRA    WORK.  —  DEVIATIONS.  431 

2.  But  when  the  charter  of  the  corporation  requires  any  particu- 
lar form  of  authenticating  their  contracts,  it  cannot  be  dispensed 
with.  And  where,  by  the  charter  of  a  railway  company,  the  direc- 
tors were  authorized  to  use  the  common  seal,  and  all  contracts  in 
writing  relating  to  the  affairs  of  the  company,  and  signed  by  any 
three  of  the  directors,  were  to  be  binding  on  the  company  ;  and  the 
company  entered  into  a  contract,  not  under  seal,  by  their  secretary, 
to  complete  certain  works,  and,  after  part  performance,  the  con- 
tractor was  dismissed  by  the  company,  it  was  held  he  could  not 
recover  the  value  of  the  work  done.3 

*  3.  But  where  the  contract  contains  express  provisions  that  no 
allowance  shall  be  made  against  the  company  for  extra  work, 
unless  directed  in  writing  under  the  hand  of  the  engineer  or  some 
other  person  designated,  or  unless  some  other  requisite  formality 
be  complied  with,  the  party  who  performs  extra  work,  upon  the 

companies  are  a  corporation,  a  body  essentially  different  from  an  ordinary  part- 
nership or  firm,  for  all  purposes  of  contracts,  and  especially  in  respect  of  evidence 
against  them  on  legal  trials;  and  should  insist  upon  these  contracts  being  by 
deed  under  the  seal  of  the  company,  or  signed  by  directors  in  the  manner  pre- 
scribed by  the  act  of  parliament.  There  is  no  safety  or  security  for  any  one 
dealing  with  such  a  body,  on  any  other  footing.  The  same  observation  also  ap- 
plies in  respect  of  any  variation  or  alteration  in  a  contract  which  has  been  made." 
But  see  post,  §  1-43,  and  cases  cited.  And  where  the  assistant  engineer  upon  a 
railway,  having  charge  of  the  construction  of  a  section  of  the  road,  becoming 
dissatisfied  with  the  contractor,  dismissed  him,  and  assumed  the  work  himself, 
agreeing  with  the  workmen  to  see  them  paid,  it  was  held  his  subsequent  decla- 
rations could  not  be  admitted,  to  charge  the  company  for  supplies  furnished  the 
contractors,  on  the  ground  that  they  were  not  made  in  the  course  of  the  perform- 
ance of  his  duty  as  agent  of  the  company.  Stiles  v.  The  Western  Railw.,  8  Met. 
44;  8.  c.  1  Am.  Railw.  C.  397.  See  also  Underwood  v.  Hart,  23  Vt.  120,  where 
the  subject  of  the  admissions  of  agents  is  discussed,  and  the  cases  revised. 
If  a  contract  under  seal  be  enlarged  by  parol  and  subsequently  performed,  or 
if  the  terms  of  the  contract  under  seal  be  varied  by  parol,  the  proper  remedy  is 
by  an  action  of  assumpsit.  Sherman  i*.  Vermont  Central  Railw.,  24  Vt.  347; 
Barker  v.  Troy  &  Rutland  Railw.,  27  Vt.  774.  In  Childs  v.  The  Somerset 
and  Kennebec  Railw.,  in  the*  Circuit  Court  of  the  United  States,  before  Mr. 
Justice  Curtis,  20  Law  Rep.  561,  it  was  held,  where  the  plaintiff,  by  special 
contract,  agreed  to  build  certain  bridges  and  depots  for  the  defendant  corpora- 
tion, for  which  he  was  to  be  paid  partly  in  cash  and  partly  in  shares  of  their  cap- 
ital stock,  and  in  the  progress  of  the  enterprise  it  became  necessary  t<>  do  much 
extra  work,  and  furnish  materials  not  provided  for  in  the  special  contract;  that 
the  plaintiff  was  entitled  to  recover  the  whole  value  of  the  extra  work  ami  male- 
rials  thus  furnished  in  money,  upon  an  implied  assumpsit,  and  that  the  agree- 
ment to  take  pay  in  shares  did  not  extend  to  this  part  of  the  work. 

[*411] 


132  CONSTRUCTION    OF    RAILWAYS.  PART  IV. 

assurance  of  any  agent  of  the  company  that  it  will  be  allowed  by 
the  company,  without  the  requisite  formality,  must  look  to  the 
ml  for  compensation,  and  cannot  recover  of  the  company,  either 
at  law  or  in  equity.4  So,  under  the  English  General  Company  Acts, 
where  the  directors  are  authorized  to  contract  on  the  part  of  the 
company,  although  not  in  writing,  when  such  contracts  would,  if 
entered  into  by  private  persons,  be  binding-  in  that  form,  three 
directors  being  a  quorum  for  that  purpose,  it  was  held  that  the 
mere  fad  that  extra  work  was  done  with  the  approbation  of  the 
company's  engineer,  the  special  contract  requiring  written  direc- 
tions for  all  the  work,  had  no  tendency  to  prove  a  contract  binding 
impany.5 
*4.  In  one  very  well-considered  case6  upon  the  subject  of  extra 
work,  not  authorized  in  the  manner  specified  in  the  contract,  it  is 
said  by  the  Vice-Chancellor :  "From  what  I  have  been  informed 
of  the  course  taken  at  law  in  these  cases,  it  is  this :  If,  in  an 
action  by  a  contractor,  it  appears  that  the  company  have  the 
benefit  of  the  work,  done  with  their  knowledge,  the  court  of  law 
does  not  allow  the  company  to  take  the  benefit  of  that  work  with- 
out paying  for  it,  although  in  covenant  (or  any  action  upon  the 
contract )  the  contractor  cannot  recover."  This  may  be  in  accord- 
ance with  the  general  rules  of  law  applicable  to  the  subject.7 

'  Kirk  v.  The  Guardians  of  the  Bromley  Union,  2  Phil.  640;  Thayer  v.  The 
Vermont  I  lentral  Railw.,  24  Vt.  440;  Herrick».  Same,  27  Vt.  673;  s.  c.  1  Redf. 
Am.  Railw.  Cases,  305;  Vanderwerker  v.  Same,  27  Vt.  125,  130. 

5  Bomersham  v.  Wolverhampton  Waterworks  Co.,  6  Exch.  137;  s.  c.  6  Railw. 
(  .  790.  Pollock,  ( '.  1>.,  said  :  "  The  company  is  not  bound  by  the  mere  order  of 
the  engineer,  or  by  the  contract  with  one  director." 

0  Nixon  v.  Taff  Vale  Railw.,  7  Hare,  136.     But  see  post,  §§  130,  143. 

7  Dyer  v.  Jones,  8  Vt.  205;    Oilman  v.  Hall,    11   id.  511.     But,  in   many 

-.   the  work  is  done  by  a  sub-contractor,  and  enures  to  the  benefit  of  the 

original  contractor,  as  in  Thayer  v.  Vermont  Central  Railw.,   24  Vt.  440,   and 

would  not  therefore  give  any  right  of  action  against  the  company,  although  in 

they  may  put  the  work  to  their  own  use,  and  so  may  be  said  to  have 

i   it,  to  some  extent. 

[*412] 


§  114.  REPUDIATION.  —  INEVITABLE   ACCIDENT.  433 


SECTION    X. 

If  one  Party  repudiate  the  Contract,  the  other  may  sue  presently. 
—  Inevitable  Accident. 

1.  Parti/  repudiating  excuses  the  other.  I  3.  President  cannot  bind  the  company. 

2.  New  contract  valid.  \  4.  Effect  of  inevitable  accident. 

§  114.  1.  Questions  often  arise  in  regard  to  the  right  of  a  party 
to  sue  for  damages  before  the  time  for  payment  arrives,  and  before 
he  has  fully  performed  on  his  part.  But  it  seems  now  to  be  well 
settled,  that  where  one  party  absolutely  repudiates  the  contract  on 
his  part,  he  thereby  exonerates  the  other  from  further  perform- 
ance, and  exposes  himself  presently  to  an  action  for  damages.1 

*  2.  Where  the  contract  is  unconditionally  repudiated  by  one 
party,  before  it  is  fully  performed,  it  is  competent  for  the  other  to 
stipulate  for  its  performance,  upon  different  terms,  no  doubt.  And 
such  stipulation,  although  not  under  seal,  would  probably  be  re- 
garded as  made  upon  a  valid  and  sufficient  consideration  ;  and  if 
made  by  an  agent  of  the  former  party  to  the  contract,  but  who  had 
not  authority  to  bind  his  principal  to  .such  contract,  it  would 
nevertheless  be  binding  upon  the  agent  and  other  party  contract- 
ing, and  would  not  be  required  to  be  in  writing,  as  it  would  be  an 
original  and  not  a  collateral  undertaking. 

3.  But  it  has  been  held,  that  after  a  railway  company  has  en- 
tered into  a  written  contract,  for  the  performance  of  certain  work, 
the  promise  of  its  president  to  allow  additional  compensation  to 
the  contractors,  for  the  same  work,  is  without  consideration  and 
not  binding  upon  the  company.2 

1  Cort  v.  The  Ambergate,  Not.  B.  &  E.  J.  Railw.,  17  Q.  B.  127  ;  s.  c.  6  Eng. 
L.  &  Eq.  230;  Planche  v.  Colburn,  8  Bing.  14  ;  Hoclister  v.  De  Latour,  2  El.  & 
Bl.  678;  s.  c.  20  Eng.  L.  &  Eq.  157.  But  in  an  action  to  recover  damages  on 
such  contract,  the  jury  are  not  to  go  into  conjectured  profits  resulting  from  a  sub- 
contract very  much  below  what  the  plaintiff  was  to  be  paid,  but  only  the  difference 
between  the  contract  price  and  the  value  of  doing  the  work  at  the  time  of  the 
breach  can  be  given.  Masterton  v.  Mayor  of  Brooklyn,  7  Hill,  61.  'flic  repudia- 
tion of  a  contract  by  the  company,  followed  by  seizure  of  the  works,  under  order  of 
a  court,  will  be  held  a  waiver  of  their  right  to  proceed  by  arbitration  under  the 
same  contract  on  all  matters  involved  in  the  question  of  the  legality  of  the  seizure. 
Putney  v.  Cape  Town  Railw.,  Law  Rep.  1  Eq.  84  ;  Bunger  v.  Koop,  48  N.  Y.  225. 

2  Colcock  v.  Louisville  Railw.,  1  Strobhart,  329  ;  Nesbitt  v.  L.  C.  &  C.  Railw., 
vol.   i.  28  [*413] 


4.',. I  CONSTRUCTION    OF   RAILWAYS.  PART  IV. 

!.  A  very  Bingular  question  arose  in  an  English  case.3  The 
plaintifl  agreed  to  make  and  erect  on  premises,  under  the  control 
of  the  defendants,  certain  machinery,  and  the  latter  were  to  pro- 
ride  all  necessary  brick  work,  etc.  Before  the  works  were  com- 
pleted  the  buildings  in  which  the  work  was  to  be  done  were 
destroyed  by  fire.  It  was  held  the  plaintiffs  were  entitled  to 
recover  for  the  work  already  done  by  them  before  the  fire,  and  that 
it  was  an  implied  term  of  the  contract  that  the  defendant  should 
provide  the  buildings  in  which  the  work  was  to  be  done,  and  en- 
able the  plaintiffs  to  do  their  part  of  the  work  and  therefore  that 
the  defendant  was  not  relieved  by  the  occurrence  of  the  fire  ;  as  a 
party  who  contracts  to  do  a  thing  is  bound  to  carry  out  his  engage- 
ment, or  to  make  compensation,  notwithstanding  he  is  prevented 
by  inevitable  accident. 


♦SECTION    XL 

Decisions  of  Referees  and  Arbitrators  in  regard   to   construction 

Contracts. 

1.  Award  valid  if  substantially  correct.  |  2.   Court  will  not  set  aside  award,  where  it 

does  substantial  justice. 

§  115.  1.  The  general  rule  of  law,  in  regard  to  the  decisions  of 
arbitrators  and  referees,  by  which  they  have  been  held  binding 
upon  the  parties,  although  not  made  strictly  according  to  the  tech- 
nical rules  of  law,  if  understandingly  made,  and  exempt  from 
fraud  or  partiality,  has  been  sometimes  applied  to  contracts  for 
construction  of  railway  works,  the  settlement  of  which  has  been 
determined  by  an  umpire.  As  where  the  contract  reserved  the 
right  to  the  company  to  alter  the  gradients  of  the  road,  and  to  sub- 
stitute piling  for  embankment  without  extra  allowance.      These 

rs,  697.  Tlie  controversy  here  is  in  regard  to  hard  pan  excavation. 
And  as  the  plaintiff  contracted  to  do  all  the  work  on  the  road,  and  to  construct 
lad-bed,  ami  his  contract  only  provided  for  earth  and  rock  excavation, 
he  is  bound  to  accept  his  estimates  under  the  contract,  and  especially,  after 
having  done  so,  he  cannot  claim  extra  compensation  for  excavating  hard  pan, 
even  if  he  show  that,  by  usage,  "  earth"  has  a  technical  meaning,  and  does  not 
include  hard  pan. 

2  Appleby  v.  Meyers,  Law  Rep.  1  C.  P.  615;  s.  c.  12  Jur.  (N.  S.)  500. 

[•414] 


§  116. 


DECISIONS   OF   COMPANY'S    ENGINEERS. 


435 


alterations  were  made,  and  thus  increased  the  expense  to  the  con- 
tractors. The  final  settlement  being  made  by  referees,  to  whom 
"  all  matters  in  dispute,  with  the  contract  as  a  basis  of  settle- 
ment," were  referred,  and  they  having  allowed  the  contractor  com- 
pensation for  this  increased  expense,  it  was  held  to  be  within  the 
power  conferred  upon  the  referees.1 

2.  So,  too,  where  the  contract  specified  a  price  for  earth  excava- 
tion, and  another  for  rock  excavation,  but  nothing  was  said  of 
"  hard  pan,"  a  good  deal  of  which  occurred  in  the  course  of  the 
work,  which  was  admitted  to  be  more  expensive  than  the  ordinary 
earth  excavation  ;  the  whole  subject  was  referred,  and  the  plain- 
tiff claimed  in  his  specification  thirty  cents  per  yard  for  excavating 
hard  pan,  and  the  referees  allowed  him  fifty  cents  on  trial.  The 
defendants  objected  to  the  allowance,  being  more  than  the  claim. 
But  the  court  said,  where  the  testimony  was  received  without 
objection,  and  showed  the  party  entitled  to  recover,  beyond  his 
specification,  the  court  will  not  set  aside  the  report,  or  grant  a  *  new 
trial,  where  it  is  apparent  the  party  has  not  recovered  more  than 
what  he  is  fairly  entitled  to.2 


SECTION    XII. 


Decisions  of  Company'' s  Engineers. 


1.  Estimates  for  advances,  mere  approxima- 

tions, under  English  practice. 

2.  But  where  the  engineer's  estimates  are  final, 

can  only  be  set  aside  for  partiality  or 
mistake. 

3.  Contractor  bound  by  practical  construction 

of  the  contract. 


4.  Estimates  do  not  conclude  matters,  not  re- 

ferred. 

5.  If  contractor  consent  to  accept  pay  in  de- 

preciated orders,  he  is  bound  by  it. 

6.  Right  of  appeal  lost  by  acquiescence. 

7.  Engineer  cannot  delegate  his  authority. 

8.  Arbitrator   must   notify  parties,  and  act 

bona  fide. 


§  116.  1.  The  English  contracts  for  railway  construction  gen- 
erally contain  a  provision  for  referring  the  final  settlement  with 

1  Porter  v.  Buckfield  Branch  Railw.,  32  Maine,  539.  In  this  case  the  con- 
tract provided  for  payment  of  a  portion  of  the  price  of  the  work  in  the  stock  of 
the  company,  and  the  arbitrators  directed,  that  the  same  proportion  of  their 
award  should  be  paid  by  issuing  certificates  of  stock,  and  the  award  was  held 
valid  in  this  particular  also. 

2  Du  Bois  v.  Delaware  &  Hudson  Canal  Co.,  12  Wend.  334. 

[*415] 


43G  CONSTRUCTION    OF   RAILWAYS.  PART  IV. 

the  contractor  to  an  indifferent  board  of  arbitrators,  or  one  selected 
by  the  parties  respectively,  with  the  umpirage  of  a  third  party  in 
case  of  disagreement.1  Under  such  contracts  the  provision  in 
■  1  to  monthly  or  semi-monthly  estimates  is  such,  that  they  are 
understood  to  be  mere  approximations,  and  it  is  only  equivalent  to 
a  provision,  that  the  company  shall  advance,  from  time  to  time  as 
the  work  progresses,  a  stipulated  proportion  of  the  work,  which 
they  shall,  by  their  engineer,  adjudge  to  be  done.  All  that  is 
requisite  to  the  validity  of  such  estimates  is,  that  they  were  made 
bona  fide,  and  with  the  intention  of  acting  according  to  the  exigency 
of  the  contract.1 

*  2.  But  where  the  contract  contains  provisions  referring  the 
estimate  of  the  quantity  and  quality  of  the  work  absolutely  to  the 
determination  of  the  company's  engineer,  or  any  particular  party, 
and  provides,  as  is  not  uncommon  in  this  country,  that  his 
decision  shall  be  final,  no  relief  from  his  determination  can  ordi- 
narily be  obtained,  even  in  a  court  of  equity,  unless  upon  the 
ground  of  partiality,  or  obvious  mistake,  which  latter  is  held  to 
apply  rather  to  the  quantity,  than  the  quality  of  the  work,  this 
being  purely  matter  of  judgment  and  discretion,  and  which  was 
intended  to  be  concluded  by  the  opinion  of  the  arbitrator.2      But 

1  Ranger  v.  Great  Western  Railw.,  5  Ho.  Lds.  72;  s.  C.  27  Eng.  L.  &  Eq. 
35,  46.  So  where  in  a  canal  contract  it  is  provided,  that  the  engineer  "  shall  in 
all  cases  determine  the  amount  or  quality  of  the  several  kinds  of  work  "  to  be 
done,  and  the  compensation  therefor,  and  either  party  had  the  right  to  compel 
an  indifferent  reference,  where  he  felt  aggrieved  by  the  decision  of  the  engineer, 
"to  investigate  and  determine  all  questions  that  may  arise  relating  to  compensa- 
tion for  work  done  under  this  contract  ; "  it  was  held,  this  umpirage  only  ex- 
tended to  the  final  account  of  the  engineer.  People  v.  Benton,  7  Barb.  209. 
Under  a  contract  where  the  company  stipulated  to  pay  the  contractor  ninety  per 
cent  of  work  done,  according  to  the  engineer's  estimate ;  and  the  engineer  had 
the  ri^ht  to  declare  the  contract  abandoned,  and  in  that  event  the  ten  per  cent 
became  forfeited,  and  the  engineer  did  so  declare ;  it  was  held  that  this  did  not 
absolve  the  company  from  the  payment  of  the  ninety  per  cent  upon  the  work  done 
by  the  contractor,  before  the  contract  was  declared  abandoned.  Pucker  v.  Fair- 
banks, 40  Maine,  43. 

2  II. nick  v.  The  Vermont  Central  Railw.,  27  Vt.  673;  Kidwell  v.  Bait.  & 
Ohio  Railw.,  11  Gratt.  376;  Alton  Railw.  v.  Northcott,  15  111.  49.  In  this  case  it 
was  held  that  the  estimate  of  the  umpire  will  not  bind  the  parties,  if  based  on  an 
erroneous  view  of  the  contract.  So  a  court  of  equity  may  correct  the  mistakes 
of  the  engineer,  although  the  contract  stipulates  that  his  decision  shall  be  final. 
Mansfield  &  Sandusky  Railw.  v.  Veeder,  17  Ohio,  385.  So,  too,  where  the 
engineer  proved  to  be  a  stockholder  in  the  company.     Milnor  v.  The  Georgia 

[•416] 


§  116.  DECISIONS   OF   COMPANY'S   ENGINEERS.  437 

in  an  English  case3  before  Vice-Chancellor  Stuart,  where  in  a 
building  contract  the  corporation  reserved  the  power  to  determine 
the  contract,  which  they  afterwards  exercised,  and  it  was  stipulated 
that  any  dispute  or  difference  which  might  arise  between  the  con- 
tracting parties  should  be  referred  to  and  settled  by  the  engineer, 
that  it  should  not  be  competent  for  either  party  to  except  at  law 
or  equity  to  his  determination,  and  that  without  the  certificate  of 
the  engineer  no  money  should  be  paid  to  the  plaintiffs;  it  appear- 
ing that  the  engineer  had  never  refused  to  discharge  his  duty 
according  to  the  contract,  and  had  nothing  to  disqualify  him  to 
act,  and  was  ready  and  willing  to  proceed  and  determine  all  mat- 
ters at  issue  between  the  parties :  it  was  held  that  there  was  no 
ground  for  the  equitable  interference  of  the  court. 

3.  If  the  contractor  acquiesce  in  a  particular  construction  of  his 
*  contract,  and  allow  his  estimates,  from  time  to  time,  to  be  made 
upon  such  basis,  he  will  be  bound  by  it  thereafter.4 

4.  Where  the  contract  specifies  a  price  for  rock  excavation,  and 
another  for  ordinary  earth  excavation,  and  in  the  course  of  the 
work  a  large  quantity  of  hard  pan  was  excavated,  for  which  no 
provision  was  made  in  the  contract,  and  the  other  party  conceded 
that  compensation  was  due,  beyond  the  price  fixed  in  the  contract 
for  ordinary  earth  excavation,  it  was  decided  that  the  contractor 
might  recover  upon  a  quantum  meruit  count.  And  where  the  con- 
tract also  provided  that  the  engineer  should  finally  determine  all 
questions  necessary  to  the  final  adjustment  of  the  contract,  this  did 
not  render  the  engineer's  estimate  conclusive,  as  to  the  sum  to  be 
paid  for  excavating  hard  pan.6     These   points  are  both  decided, 

Railway  &  Banking  Co.,  4  Ga.  385.  And  in  Kerns  v.  CReilley,  Leg.  Int.  Aug. 
31,  1866,  it  was  decided  that  the  award  of  an  engineer  between  contractor  and 
sub-contractor  is  final.  And  in  Leech  v.  Caldwell,  id.  Nov.  16,  1866,  it  was 
held,  that  where  the  sub-contractor  covenanted  to  abide  the  decision  of  the 
engineer  of  the  work  in  any  dispute  arising  on  the  contract,  the  alleged  fraud  of 
the  engineer  did  not  affect  the  covenant. 

3  Scott  v.  Corporation  of  Liverpool,  31  Law  Times,  147,  1858.  This  subject 
is  discussed  in  Roberts  v.  the  Bury  Improvement  Commissioners,  L.  R.  4  C.  P. 
755 ;  s.  c.  5  id.  310.  But  there  is  so  much  difference  of  opinion  among  the 
judges  that  no  new  principle  can  fairly  be  said  to  be  established.  See  also  Jones 
v.  St.  John's  College,  L.  R.  6  Q.  B.  115. 

4  Kid  well  v.  The  Baltimore  &  Ohio  Itailw.,  11  Grattan,  676.  See  also  Com- 
monwealth v.  Clarkson,  3  Penn.  St.  277. 

6  Du  Bois  v.  Delaware  &  Hudson  Canal  Co.,  12  Wend.  334;  s.  C.  15  id.  87. 
See  s.  c.  4  Wend.  285.     But  see  ante,  §  114;  Nesbitt  v.  L.  C.  &c  Railw.,  2 

[*417] 


CONSTRUCTION   OF   RAILWAYS.  PART  IV. 

mainly,  it  is  presumed,  upon  the  concession  of  the  defendant,  that 
the  bard  pan  excavation  was  a  matter  altogether  outside  of  the 
contract.  Otherwise  it  might  seem  difficult  to  maintain  their 
entire  consistency  with  other  decided  cases.6 

5.  Where  the  contract  gives  the  engineer  power  to  stop  the 
work,  when  the  means  of  carrying  it  forward  fail,  and  he  informed 
the  contractor  it  could  not  proceed  unless  he  would  receive  his 
monthly  pay  in  orders,  which  were  at  a  discount,  and  the  contractor 

ated  to  receive  them,  he  is  not  entitled  to  recover  of  the 
company  the  amount  of  such  depreciation.7 

6.  And  although  the  contractor,  by  the  contract,  had  the  power 
to  refuse  to  abide  by  the  final  estimates  of  the  engineer,  yet  if 
h«'  submitted  to  him  his  charges  for  the  work  done,  and  made 
no  objection  to  his  making  up  the  final  estimate,  he  is  bound 
thereby." 

7.  Where  in  a  contract  for  work  upon  a  railway  it  was  stipu- 
lated that  the  work  should  be  measured  by  defendant's  engineer 
*  or  agent,  which  should  be  final  and  conclusive,  it  was  held  that 
such  person  could  not  delegate  his  authority,  but  that  it  was 
indispensable  that  he  should  himself  make  the  admeasurement. 
But  in  making  it,  it  is  not  necessary  that  he  should  give  previous 
notice  to  the  parties  to  enable  them  to  be  present.8 

8.  But  if  such  agent  is  to  make  an  estimate  of  certain  expenses 
to  be  allowed  the  plaintiff,  and  he  proceeds  to  do  so,  in  the  absence 
of  plaintiff  and  without  notice  to  him,  he  will  not  be  bound  by  the 
estimate.  But  such  estimate  will  not  be  affected  by  the  inade- 
quacy of  the  amount,  or  that  the  usual  means  were  not  resorted 
to  for  ascertaining  facts,  if  the  umpire  act  bona  fide,  which  is  a 
fact  to  be  determined  by  the  jury.8 

'7,  where  hard  pan  seems  to  be  regarded  as  earth  excavation,  unless 
there  is  some  special  provision  in  the  contractor  estimating  it  otherwise. 

Morgan  v.  Birnie,  '.»  P.ing.  672.     See  also  Sherman  v.  The  Mayor  of  New 
York.  1  Comst.  316,  320. 

7  Kidwell  r.  The  lialtimore  &  Ohio  Railw.,  11  Grattan,  676.  See  also  Com- 
monwealth  v.  Clarkson,  3  Penn.  St.  277,  upon  the  general  subject  of  the  con- 
clusiveness of  the  engineer's  estimate. 

"   Wilson  r.  York  &  Md.  Railw.  Co.,  11  Gill  &  Johns.  58.     Gross  negligence 
fraud,  but  is  evidence  to  be  considered  by  the  jury.     Id. 

'18] 


sir 


EQUITABLE    RELIEF    FROM    DECISIONS    OF    ENGINEERS. 


489 


SECTION    XIII. 


Relief  in  Equity  from  Decisions  of  Company's  Engineers. 


1.  Facts  of  an  important  case  stated. 

2.  Claim  of  contractor  in  the  bill. 

3.  Bill  sustained.     Amendment  alleging  mis- 

take in  estimates. 

4.  Relief  only  to  be  had  in  equity. 

5.  Proof  of  fraud  must  be  very  clear. 

6.  Engineer  being  shareholder,  not  valid  ob- 

jection. 

7.  Decision  of  engineer  conclusive  as  to  qual- 

ity of  work,  but  not  as  to  quantity. 

8.  New  contract  condonation  of  old  claims. 

9.  Account  ordered  after  company  had  con- 

pleted  work. 


10.  Money  penalties  cannot  be  relieved  against 

mil,  ss  for  fraud. 
n.  1.  Review  of  the  cases  upon  this  subject. 

1 1 .  Engineer's  estimates  not  conclusive  unless 

so  agreed. 

Contractor,  whose  work  surrendered  by 
supplemental  contract,  entitled  to  full 
compensation. 

Direction  of  umpire  binding  on  contract- 
ing parties,  and  dispenses  with  certifi- 
cate of  full  performance. 


12. 


l:: 


§  117.  1.  In  consequence  of  the  peculiar  stringency  of  the 
terms  of  contracts  for  railway  construction,  applications  for  relief 
in  equity  have  not  been  unfrequent.     In  one  case  1  it  was  agreed 


1  Ranger  v.  Great  Western  Railw.,  1  Railw.  C.  1 ;  s.  c.  13  Sim.  368. 

And  where  by  the  contract  the  work  was  to  be  done  to  the  satisfaction  of  the 
engineer  of  the  defendants,  and  suit  was  brought  without  obtaining  the  judgment 
of  the  engineer,  held,  that  it  could  not  be  maintained.  Parkes  v.  The  Great 
Western  Railw.,  3  Railw.  C.  17.  This  case  is  also  found  in  3  Railw.  C.  298,  and 
in  5  Ho.  Lds.  72,  and  in  27  Eng.  Law  &  Eq.  35.  This  case  came  before  the 
House  of  Lords,  on  appeal  for  final  determination,  May  26,  1854,  just  ten  years 
after  the  decision  in  the  Vice-Chancellor's  court.  The  judgment  was  in  the  main 
affirmed,  but  in  form  was  reversed,  and  sent  back  to  the  Court  of  ( Ihancery,  for 
an  account  to  be  taken  between  the  parties,  according  to  their  respective  rights, 
as  established  by  the  final  decision.  The  case,  as  it  appeared  on  the  final  hear- 
ing, is  deserving  of  a  more  extended  notice.  The  following  is  the  statement  of 
the  case,  and  the  points  ruled  in  the  House  of  Lords.  In  a  contract  between  R. 
and  a  railway  company  for  the  performance  by  R.  of  a  portion  of  the  line  of 
railway,  alter  reciting  that  R.  agreed  to  secure  the  due  performance  of  his  con- 
tract, by  his  bond  in  the  penal  sum  of  £4,000  conditioned  for  the  payment  to  the 
company  of  certain  fixed  sums  for  every  week  in  which  the  work  should  not  be 
completed  according  to  the  contract,  the  penalty  in  each  successive  week  to 
increase  in  a  fixed  proportion,  it  was  witnessed,  amongst  other  tilings,  that  in 
case  R.  should  become  insolvent,  &c,  or  should,  from  any  cause  whatsoever  (not 
the  act  of  the  company),  not  proceed  in  the  works  to  the  satisfaction  of  the  com- 
pany, the  Company  might  give  to  U.  a  notice  in  writing  requiring  him  to  proceed 
with  the  said  works,  and  in  case  R.  should  for  seven  days  after  such  notice  make 

[*418] 


4  in  CONSTRUCTION   OP   RAILWAYS.  PART  IV. 

by  *  the  contract  that  every  fortnight  the  engineer  of  the  company 
should  ascertain  the  value  of   the  work   done,  according    to  its 

default  in  commencing  or  regularly  proceeding  with  the  said  works,  it  should  be 
lawful  lor  the  company  to  employ  other  persons  to  complete  the  works,  and  pay 
them  out  of  tlic  money  which  should  be  then  remaining  due  to  R.  on  account  of 
his  contract ;  ami  that  the  moneys  previously  paid  to  R.  on  account  of  any  works 
should  be  considered  as  the  full  value,  and  be  taken  by  him  as  in  full  payment 
ami  satisfaction  for  all  works  done  by  him  :  and  that  all  moneys  which  either 
then  or  thereafter  would  have  been  payable  to  R.,  together  with  all  the  tools  and 
materials  then  being  upon  the  works,  should,  upon  such  default  as  aforesaid, 
become  and  be  in  all  respects  considered  as  the  absolute  property  of  the  com- 
panv  :  and  that  if  such  moneys,  tools,  and  materials  should  not  be  sufficient  to 
pay  for  the  completion  of  the  works,  then  R.  should  make  good  such  deficiency 
on  demand.  It  was  then  further  witnessed,  and  the  company  covenanted  to  pay 
to  It.  for  the  completion  of  the  works  the  sum  of  £63,028  16s.,  in  the  following 
manner,  namely,  every  fourteen  days  four-fifth  parts  of  the  whole  value  of  the 
said  work  which  shall  have  been  actually  performed  during  the  preceding  four- 
teen days,  until  there  should  be  a  reserved  fund  of  £4,000,  and  then  every  four- 
teen days  to  pay  the  full  value  of  such  work,  such  value  to  be  estimated  by  the 
principal  engineer  or  his  assistant,  having  reference  as  well  to  the  prices  in  the 
schedule  (as  to  extra  work)  as  to  the  entire  cost  of  the  whole  works ;  and  at 
the  expiration  of  one  calendar  month  after  the  completion  of  the  entire  works,  to 
pay  one  moiety  of  the  £4,000  so  retained  in  the  hands  of  the  company,  and  at  the 
expiration  of  one  year  and  a  month,  the  remaining  moiety  of  the  £4,000.  And 
it  was  lastly  agreed,  that  during  the  progress  of  the  works,  the  decision  of  the 
principal  engineer  for  the  time  being  of  the  company,  with  respect  to  the  amount, 
state,  condiiion,  &c,  or  any  other  matter  or  thing  whatsoever  relating  to  the 
same,  shall  be  final,  and  without  appeal;  but  in  case  of  dispute,  after  the  com- 
pletion of  the  contract,  as  to  any  matter  of  charge  or  account  between  the  com- 
pany and  R.,  such  dispute  shall  be  finally  settled  by  the  arbitration  of  the  said 
engineer  on  the  part  of  the  company,  and  an  engineer  appointed  by  R.  on  his 
part,  or  if  they  disagree,  by  an  arbitrator  to  be  named  by  them.  After  R.  had 
proceeded  to  a  very  considerable  extent  towards  the  completion  of  his  contract, 
the  company,  being  dissatisfied  with  the  progress  of  the  works,  gave  the  notice 
to  It.  mentioned  in  the  contract,  and  after  seven  days  they  took  possession  of  the 
■works,  and  of  all  the  tools  and  materials  thereon,  and  completed  the  works  by 
Other  parties.  R.  filed  his  bill,  setting  up  a  case  of  fraud  against  the  company  in 
concealing  the  nature  of  the  strata  through  which  cuttings  and  tunnels  were  to 
be  made,  and  insisting  that  he  was  entitled  to  be  paid  for  those  works  at  fair 
prices,  regardless  of  the  contract;  that  the  fortnightly  certificates  of  the  value  of 
the  work  given  by  B.,  the  engineer  of  the  company,  were  void,  and  not  binding 
upon  him,  in  consequence  of  B.  being  a  shareholder  in  the  company;  that  he 
was  entitled  to  be  relieved  against  certain  money  penalties  which  had  been 
charged  against  him  in  the  engineer's  certificates;  that  the  company  were  not 
justified  in  taking  possession  of  the  works,  tools,  and  materials;  and  that  he  was 
entitled  to  have  an  account  taken  of  the  value  of  the  work  done,  on  the  footing 
that  there  were  no  contracts,  or  that  they  were  abandoned;  and  that  the  com- 
[*419] 


§  117.        EQUITABLE   RELIEF   FROM   DECISIONS   OF   ENGINEERS.  441 

*  quality  and  relative  proportion  to  the  whole  work  ;  the  contractor 
to  receive  eighty  per  centum,  the   remainder  being  reserved  to 

pany  might  be  debited  with  the  value  of  the  engines,  tools,  materials,  articles, 
and  things  of  which  the  company  took  possession. 

Held,  first,  that  no  case  of  fraud  had  been  made  out.    But,  semble,  that  although 
a  corporation  cannot  be  guilty  of  fraud,  yet  if  their  agents  employed  in  carrying 
out  a  trading  speculation  be  guilty  of  fraud,  the  corporation  will  be  liable.     Per 
the   Lord    Chancellor.     Secondly,   that  the  principle  which  prevents  a  person 
being  a  judge  in  his  own  cause  (Dimes  v.  The  Grand  Junction  Canal  Co.,  3  Ho. 
Lds.  759 ;   17  Jur.  73 ;  s.  c.  16  Eng.  L.  &  Eq.  63),  does  not  apply  to  the  case 
of  the  engineer  of  a  railway  company  holding  shares  in   that  company,  who, 
according  to  the  terms  of  a  contract  between  the  company  and  a  contractor,  was, 
during  the  progress  of  tbe  works,  to  give  periodical  certificates  of  the  value  of 
the  work  done,  but  which,  on  the  completion  of  the  contract,  were  not  final. 
Thirdly,  that  the  money  penalties  had  been  properly  charged  against  R.,  they 
being,  upon  the  proper  construction  of  (he  contract,  not  penalties,  but  liquidated 
damages.     Fourthly,  that  even  assuming  that  the  company  were  not  justified  in 
taking  possession  of  the  works,  tools,  and  materials,  after  the  notice  given  R. 
was  not  entitled  to  treat  the  contract  as  not  existing,  or  as  abandoned.     R.'s 
right  would  have  been  by  action  for  damages,  and  the  seizure  by  the  company 
formed  no  ground  for  such  equitable  relief  as  was  asked.     Fifthly,  that  upon  the 
true  construction  of  the  contract,  the  company  did  not  according  to  their  conten- 
tion, upon  taking  possession  of  the  works  and  plant  after  notice,  become  absolute 
owners  of  the  tools  and  materials,  &c.  ;  this  whole  provision  is  to  be  regarded, 
not  in  the  nature  of  a  penalty,  but  as  mere  machinery  for  enabling  the  company 
to  complete  the  works  at  the  cost  of  R.,  and  the  company  are  bound  to  account 
for  the  value  of  the  tools  and  materials,  in  settling  their  accounts  with  him, 
which  accounts  were  decreed  to  be  taken  on  the  footing  of  the  contract.     In  re- 
gard to  the  competency  of  the  engineer,  the  leanied  Chancellor  said  :   "  When  it 
is  stipulated  that  certain  questions  shall  be  decided  by  the  engineer  appointed  by 
the  company,  that  is,  in  fact,  a  stipulation  that  they  shall   be  decided  by  the 
company.     It  is  obvious  that  there  never  was  any  intention  of  leaving  to  third 
persons  the  decision  of  questions  arising  during  the  progress  of  the  works.     The 
company  reserved  the  decision  for  itself,  acting,  however,  as  from  the  nature  of 
things  it  must  act,  by  an  agent,  and  that  agent  was,  for  this  purpose,  the  engineer. 
His  decisions  were,  in  fact,  their  decisions.     The  contract  did  not  hold  out,  or 
pretend  to  hold  out,  to  the  appellant,  that  he  was  to  look  to  the  engineer  in  any 
other  character  than  as  the  impersonation  of  the  company.     In  fact,  the  contract 
treats  his  acts  and  their  acts,  for  many  purposes,  as  equivalent,  or  rather  identi- 
cal.    I  am,  therefore,  of  opinion,  that  the  principle  on  which  the  doctrines  as  to 
a  judge  rest,  wholly  fails  as  to  its  application  to  this  case.     The  company's  engi- 
neer was  not  intended  to  be  an  impartial  judge,  but  the  organ  of  one  of  the  con- 
tracting parties.     The  company  stipulated  that  their  engineer  for  the  time  being, 
whosoever  he  might  be,  should  be  the  person  to  decide  disputes  pending  the 
progress  of  the  works,  and  the  appellant,  by  assenting  to  that  stipulation,  put  it 
out  of  his  power  to  object,  on  the  ground  of  what  has  been  called  the  '  unindif- 
ferency'  of  the  person  by  whose  decision  he  agreed  to  be  bound.      It  is  to  be 

[*420J 


4  1  2  CONSTRUCTION    OF   RAILWAYS.  PART  IV. 

♦enforce    the    completion   of  the   works:    That   if   the    engineer 
should  not   be  satisfied  with  the  works,  after  notice  given  to  the 

pved,  that  the  person  to  decide  was  not  a  particular  individual,  in  whom 
notwithstanding  bis  relation  to  the  company,  the  contractor  might  have  so  much 
confidence  as  to  agree  to  be  bound  by  his  awards,  but  any  one  from  lime  to  time 
the  company  might  choose  to  select  as  their  engineer.  The  appellant  alleges 
that  he  did  not  know  the  fact  that  Mr.  Brunei  was  a  shareholder  until  more  than 
two  years  alter  the  works  had  been  begun.  But  he  must  have  known  that  the 
company  had  it  in  their  power  to  appoint  another  engineer  in  Mr.  Brunei's  place, 
who  mighl  hold  shares,  or  that  Mr.  Brunei  himself  might  purchase  shares.  With- 
out the  intervention  of  the  engineer,  the  contract  was,  as  it  were,  paralyzed; 
nothing  could  be  done  under  it ;  and  it  surely  can  hardly  be  argued  that  a  person 
appointed  engineer  could,  by  purchasing  shares,  render  the  contract  practically 
inoperative." 

It  is  regarded  as  questionable,  how  far  a  contract,  vesting  the  property  of  the 
contractor  in  the  company,  in  the  event  of  his  insolvency  merely,  could  be  main- 
tained, as  consistent  with  the  English  bankrupt  and  insolvent  laws.  Rouch  v. 
The  Great  W.  Railway,  1  Q.  B.  51 ;  s.  c.  2  Railw.  C.  505.  But  this  objection 
may  be  obviated  by  the  company  stipulating  for  a  lien  merely ;  a  right  to  use  the 
tools  and  materials  of  the  contractor  in  the  completion  of  the  work,  according 
to  ar.d  in  fulfilment  of  his  contract.  Hawthorn  v.  Newcastle-upon-Tyne  &  N. 
Shield  Railw.,  3  Q.  B.  734,  note  a  ;  s.  c.  2  Railw.  C.  299.  It  is  said  in  one  case, 
by  a  very  learned  equity  judge,  Lord  Redesdale  (O'Connors.  Spaight,  1  Sch.  & 
Lef.  309),  that  where  an  account  has  become  so  complicated  that  a  court  of  law 
would  be  incompetent  to  examine  it,  upon  a  trial  at  Nisi  Prius,  with  all  neces- 
accuracy,  a  court  of  equity  will,  upon  that  ground  alone,  take  cognizance  of 
tl.e  case.  But  a  court  of  equity  will  not  ordinarily  interfere  in  any  such  case, 
and  especially  when  the  party  applying  has  been  guilty  of  laches.  Northwestern 
Railw.  v.  Martin,  2  Phil.  758.  See  also  Taff-Vale  Railw.  v.  Nixon,  1  H.  L.  Cas. 
11!;  Faley  v.  Hill,  2  id.  45,  46.  See  also  Nixon  v.  Taff-Vale  Railw.,  7  Hare, 
13G.  It  is  questionable,  we  think,  whether  any  such  distinct  ground  of  exclusive 
equity  jurisdiction,  in  matters  of  account,  as  the  complicated  nature  of  the  trans- 
actions, can  lie  maintained,  but  there  is  little  doubt  this  would  be  regarded  as  an 
important  consideration  in  guiding  the  discretion  of  that  court,  in  assuming  such 
jurisdiction,  in  any  particular  case  pending  in  a  court  of  law.  But  sometimes 
where  the  contractor  claims  the  right  to  appropriate  payments,  made  generally, 
to  a  different  contract  from  that  upon  which  the  company  desire  it  to  apply,  it 
b  ic  imes  necessary  to  draw  the  whole  into  a  court  of  equity.  Southeastern  Railw. 
D.  Brogden,  1  I  Jur.  795;  s.  c.  3  McN.  &  G.  8.  See  upon  the  general  subject, 
Waring  v.  The  Manch.  &  Sheffield  &  L.  Railw.,  7  Hare,  482.     An  important 

upon  a  contract  for  railway  construction,  finally  determined  in  the  national 
tribunal  of  last  resort,  upon  elaborate  argument  and  great  consideration,  and 
which  involved  most  of  the  subjects  involved  in  the  case  of  Ranger  v.  The  Great 
W  estern  Railway,  may  be  regarded,  perhaps,  as  bearing  something  of  the  same 
relation  to  cases  in  this  country  upon  that  subject  which  the  English  case  does  to 

of  that  kind  in  the  English  courts. 
This  is  the  case  of  Philadelphia,  Wilmington,  &  Baltimore  Railw.  v.  Howard, 

[*421] 


§  117.         EQUITABLE   RELIEF   FROM   DECISIONS    OF   ENGINEERS.  443 

contractor,  *  and  his  default  in  complying  for  seven  days  to  take 
possession  of  the  works,  thereupon  the  plant  and  materials  of  the 

13  How.  307  ;  s.  c.  1  Am.  Railw.  C.  70.  It  came  into  the  United  States  Supreme 
Court  by  writ  of  error  to  the  Circuit  Court  of  the  United  States  for  the  District 
of  Maryland.  The  facts  in  the  case  are  complicated,  and  the  points  involved 
numerous.  It  will  only  be  necessary  to  state  the  facts,  in  connection  with  the 
several  points  decided.  The  points  bearing  upon  this  subject  are :  In  such  con- 
tract the  covenant  to  finish  the  work  by  a  time  named  on  the  one  part,  and  to 
pay  monthly  on  the  other  part,  are  distinct  and  independent  covenants.  And  a 
right  to  annul  the  contract,  on  the  part  of  the  company,  at  any  time,  did  not 
include  a  right  to  forfeit  the  earnings  of  the  other  party  for  work  done  prior  to 
the  time  when  the  contract  was  annulled.  A  covenant  to  execute  the  work, 
according  to  a  certain  schedule,  which  mentioned  that  it  was  to  be  done  accord- 
ing to  the  directions  of  the  engineer,  bound  the  company  to  pay  for  work  done 
according  to  his  directions,  although  not  strictly  in  conformity  with  a  profile 
showing  the  original  proximate  estimates.  And  when  the  contract  was  to  place 
the  waste  earth  where  ordered  by  the  engineer,  it  was  the  duty  of  the  engineer 
to  provide  a  convenient  place,  and  if  he  failed  to  do  so  the  other  party  is  entitled 
to  damages.  Where  the  contract  authorized  the  company  to  retain,  until  the 
completion  of  the  contract,  fifteen  per  cent  of  the  earnings  of  the  contractor,  by 
way  of  indemnity  from  loss,  by  any  failure  to  perform  the  contract  by  the  con- 
tractor, it  was  held  this  was  not  to  be  regarded  as  a  forfeiture,  and  that  the 
company,  if  they  terminated  the  contract,  were  bound  to  pay  the  contractor  any 
amount  which  they  had  so  retained,  unless  the  jury  were  satisfied  the  company 
had  sustained  loss  by  the  default,  negligence,  or  misconduct  of  the  contractor, 
which  should  be  deducted.  Where  the  contractor  was  delayed  in  the  progress  of 
the  work,  by  an  injunction  out  of  Chancery,  he  is  entitled  to  no  damages,  unless 
the  jury  find  that  the  company  did  not  use  reasonable  diligence  in  obtaining  a 
dissolution  of  the  injunction.  If  a  railway  company,  having  the  power  reserved 
to  them  of  annulling  a  contract  for  construction,  "when,  in  their  opinion,  it  is 
not  in  due  progress  of  execution,"  or  the  contractor  is  "  irregular  or  negligent,1' 
it  was  held,  that  if  they  exercised  this  power  for  the  purpose  of  having  the  work 
done  cheaper,  or  of  oppressing  and  injuring  the  contractor,  he  was  entitled  to 
recover  damages  for  any  loss  of  profit  he  might  have  sustained,  and  of  the  reasons 
which  influenced  the  company,  the  jury  were  to  be  judges. 

And  in  Herrick  v.  Vermont  Central  Railw.,  27  Vt.  073;  s.  c.  1  Redf.  Am. 
Railw.  Cases,  305,  the  following  points  were  decided  upon  this  subject:  A  stipula- 
tion in  a  contract  for  the  construction,  in  part,  of  a  railway,  that  "  the  engineer 
shall  be  the  sole  judge  of  the  quality  and  quantity  of  the  work,  and  from  his  decision 
there  shall  be  no  appeal,*'  is  binding  upon  the  parties,  and  constitutes  the  engi- 
neer an  arbitrator  or  umpire  between  them.  Such  a  stipulation  imposes  upon  the 
parly  by  whom  the  engineers  are  to  be  employed,  the  duty  of  employing  for  such 
engineers  competent,  upright,  and  trustworthy  persons,  and  to  see  to  it  that  they 
perform  the  service  expected  of  them  at  a  proper  time  and  in  a  proper  manner. 
Such  a  stipulation,  when  construed  with  reference  to  its  subject-matter,  and  the 
ordinary  course  of  business,  does  not  require  the  estimates  to  lie  made  or  verified 
by  the  chief  engineer,  hut   I  is  reference  a-  well  to  the  assistant,  or  resident  en- 

[*422] 


444  CONSTRUCTION    OF    RAILWAYS.  PART  IV. 

contractor,  *  and  all  the  work  done  and  not  paid  for,  and  the 
reserved  fund  to  be  forfeited  to  the  company. 

ginecr,  I  v  whom  such  estimates  are  usually  made.  If  payment  Tor  the  work 
performed  is  dependent  upon  and  to  be  made  according  to  the  engineer's  esti- 
mates, as  to  its  amount,  and  the  employing  party  performs  its  duty  in  reference 
to  the  employment  of  suitable  engineers,  &c,  the  obligation  to  pay  will  not  arise 
until  such  estimates  are  made.  But  if  no  estimates  are  made,  through  the  neglect 
or  fault  of  the  engineer,  or  of  the  party  who  employs  him,  the  other  party  could 
probably  recover  at  law,  for  the  work  performed  by  him,  without  any  engineer's 
estimate  of  it.  A  contract  providing  for  monthly  estimates  of  the  contractor's 
work  according  to  which  he  is  to  be  paid,  imports  an  accurate  measurement  and 
final  estimate  for  each  month,  and  not  such  a  one  as  is  merely  approximate  or 
conjectural.  A  court  of  equity  has  jurisdiction  of  a  claim  to  be  paid  for  a  larger 
amount  of  work  done  under  such  a  contract  than  was  estimated  by  the  engineer, 
where  the  under-estimate  was  occasioned  either  by  mistake  or  fraud.  The  Ver- 
mont Central  Railway  Company  contracted  with  B.  for  the  construction  of  their 
railway,  and  B.  contracted  with  the  plaintiff  for  the  construction  of  a  part  of  it. 
In  both  contracts  there  was  such  a  provision  in  reference  to  the  conclusiveness  of 
the  engineer's  estimates.  Held,  that  there  was  no  privity  of  contract  between 
the  plaintiff  and  the  Vermont  Central  Railway  Company,  and  that  he  could  not 
recover  of  them  for  work  not  estimated  by  the  engineer,  by  reason  only  of  a 
mistake,  which  they  had  not,  either  directly  or  indirectly,  caused  or  connived  at; 
and  that  their  indebtedness  to  B.  for  the  same  work  for  which  he  was  indebted 
to  the  plaintiff,  did  not  constitute  a  fund  against  which  the  plaintiff  had  a  claim. 
But  if  there  was  any  connivance  on  the  part  of  the  Vermont  Central  Railway 
Company,  or  their  agents,  in  bringing  about  the  under-estimates  complained  of, 
even  it  it  was  without  the  design  ultimately  to  defraud,  but  only  as  a  temporary 
expedient  lor  present  relief,  the  plaintiff  would  be  entitled  to  recover  of  them 
the  loss  which  he  sustained  by  reason  thereof. 

The  plaintiff  claimed  in  his  bill,  that  he  had  been  under-estimated  a  given 
amount,  for  the  payment  of  which  he  instituted  the  present  suit;  by  the  report 
of  the  Master,  the  amount  not  estimated  was  found  to  be  more  than  twice  that 
amount.  Held,  that  the  plaintiff  should  be  limited  to  the  amount  claimed  in  his 
bill.  The  report  of  a  Master  in  Chancery  upon  the  taking  of  an  account,  should 
contain  a  succinct  statement  of  all  the  points  made  by  counsel,  and  the  facts 
found  by  him  upon  each  point.  The  testimony  given  viva  voce  before  a  Master 
in  ( Ibancery,  in  taking  an  account,  or  a  copy  of  it,  should  be  returned  to  the 
court,  with  his  report.  The  Master  should  also  state  the  account,  at  length,  and 
all  the  facts  found  by  him,  so  that  they  will  be  intelligible,  without  reference  to 
the  testimony.  In  a  contract  for  railway  construction,  where  the  parties  by  a 
subsequent  contract  stipulated  for  the  completing  of  the  work  by  a  day  named, 
for  the  additional  price  of  £15,000,  and  a  further  stipulation  that  the  contractor 
should  pay  the  company  £:i()0  for  each  day's  delay  beyond  the  time  specified,  the 
m\  to  furnish  the  rails  and  chairs,  blocks,  &c,  to  complete  the  same,  by 
the  day  specified,  the  work  was  not  finished  for  twenty-four  days  after  the  time 
Bpecifi.  d,  and  the  rails,  chairs,  blocks,  &c,  were  not  furnished  to  complete  it 
sooner.     The  court  held  the  covenants  independent  of  each  other,  and  the  con- 


§  117.         EQUITABLE   RELIEF   FROM   DECISIONS   OF   ENGINEERS.  445 

*  2.  The  company  having  taken  the  forfeiture  under  the  contract, 
the  plaintiff  filed  his  bill,  insisting  that  the  engineer  had  under- 
estimated the  work  <£30,000,  and  that  no  forfeiture  had  been 
incurred  by  him,  and  praying  that  the  company  might  elect  to 
permit  the  plaintiff  to  complete  the  works,  or  that  the  contract 
might  be  considered  at  an  end,  and  in  either  case  an  account 
between  the  parties  might  be  taken. 

*  3.  The  Lord  Chancellor  held,  that  the  facts  alleged  do  entitle 
the  plaintiff  to  relief  in  equity.  The  plaintiff  amended  his  bill, 
and  alleged  that  the  most  expensive  masonry  had  been  paid  for 
only  at  the  price  of  inferior  work,  and  claimed  large  sums  in  that 
respect,  and  also  alleged  fraud  against  the  company,  in  the  con- 
tracts and  in  the  certificates. 

4.  It  was  held,  that  the  investigations  as  to  the  sufficiency  .of 
the  payments  made  could  only  be  made  in  a  court  of  equity. 

5.  That  the  evidence  in  support  of  an  allegation  of  fraud  must 
be  very  clear,  and  that  it  is  not  enough  to  show  that  the  state- 
ments of  the  company  as  to  the  nature  of  the  work,  gave  imper- 
fect information,  but  it  must  also  be  shown  that  the  contractor 
could  not  with  reasonable  diligence  have  acquired  all  necessary 
information. 

6.  The  fact  of  the  engineer  being  a  shareholder  in  the  company 
is  not  enough  to  avoid  his  decision,  as  the  contractor  might  have 
ascertained  this  fact.  The  character  of  an  engineer  is  of  more 
value  to  him  than  his  interest  as  a  shareholder. 

7.  That  the  decision  of  the  engineer  as  to  the  quality  of  the 
work  is  conclusive,  but  not  as  to  the  quantity.  The  question  of 
measurement  and  calculation  will  be  entertained  and  decided  by 
a  court  of  equity. 

8.  That  where  the  parties  have  entered  into  new  contracts,  it 
will  be  considered,  a  condonation  of  old  injuries,  unless,  at  the 
time  of  making  the  new  contract,  the  plaintiff  insisted  upon  his 
adverse  claims,  the  parties  being  at  liberty  to  proceed  at  law. 

9.  After  the  works  were  completed  by  the  company  the  court 

tractor  bound  to  deduct  the  stipulated  forfeiture,  notwithstanding  the  default  of 
the  company.  Mcintosh  v.  Midland  Counties  Railw.,  14  M.  &  W.  548;  8.  c.  3 
Railw.  C.  780.  The  rule  of  law  that  covenants,  winch  are  not  the  entire  consid- 
eration for  each  other,  will  ordinarily  be  construed  as  independent,  unless  there 
is  something  in  the  transaction  which  shows  the  parties  regarded  them  as  de- 
pendent, is  certainly  carried  further  in  this  case  than  reason  and  just  ire  would 
seem  to  justify.     We  think  this  case  would  not  be  followed  in  this  country. 

[*424,  425] 


446  CONSTRUCTION   OF   RAILWAYS.  PART  IV. 

ordered  an   account  taken,  directing  special  inquiries  as  to  the 
amount  and  kind  of  work  done. 

LO.  It  was  held  that  stipulations  in  regard  to  penalties  in  these 
contracts  are  binding  upon  the  parties,  and  no  relief  against 
them  will  be  afforded  in  equity  unless  fraud  be  shown.  And  that, 
where  it  had  been  agreed  that  a  written  contract  should  form 
part  of  an  unwritten  one,  this  will  include  stipulations  as  to  for- 
feituiv.1 

11.  In  one  case  in  Pennsylvania2  it  was  decided  that  the  esti- 
mates  and  decisions  of  the  engineer  of  a  railway  company  are 
conclusive,  in  disputes  with  contractors,  only  where  such  is  the 
positive  stipulation  of  the  contract ;  that  in  every  other  case  the 
*  correctness  of  such  estimates  are  to  be  tested  by  evidence,  and 
in  an  action  against  the  company  by  a  contractor  to  recover  a 
balance  claimed  to  be  due  for  work,  it  is  correct  to  instruct  the 
jury  to  rely  on  the  engineer's  final  estimates  unless  shown  to  be 
erroneous. 

12.  In  such  a  contract,  where  a  supplemental  contract  was  made 
by  the  company,  assuming  the  work,  and  agreeing  to  pay  the  con- 
tractor for  what  work  he  had  done,  and  reserving  no  claim  for 
damages,  either  on  account  of  the  suspension  of  the  wox'k  or  its 
not  being  completed,  it  was  held  that  the  contractor  was  entitled 
to  compensation  according  to  the  stipulations  of  the  supplemental 
contract,  without  any  deductions  on  account  of  suspension  of  or 
not  completing  the  work,  and  that  the  work  done  and  agreed  to  be 
compensated  must  be  estimated  at  what  it  was  worth,  and  the 
contractor's  claim  could  not  be  restricted  to  what  would  be  coming 
to  him  under  the  final  estimates  of  the  engineer  ;  nor  could  the 
company  claim  any  deductions  on  account  of  loss  incurred  in 
completing  the  work.2 

13.  And  where  the  plaintiff  stipulated  to  perform  the  work  of 
shifting  the  track  of  a  railway,  under  the  direction  and  to  the 
satisfaction  of  the  city  surveyor,  whose  certificate  that  the  work 
had  been  so  performed  was  to  entitle  him  to  payment,  it  was  held, 
that  where  the  surveyor  directed  that  the  work  should  not  be  done 
beyond  a  certain  point,  that  was  a  valid  excuse  for  not  obtaining 
his  certificate  of  performance  beyond  that  point.3 

■  .Memphis  llailw.  Co.  v.  Wilcox,  48  Penn.  St,  161. 
3  Devlin  v.  Second  Avenue  Railw.  Co.,  44  Barb.  81. 
[*426] 


118. 


FRAUDS  IN  CONTRACTS  FOR  CONSTRUCTION. 


447 


SECTION    XIV. 


Frauds  in  Contracts  for  Construction. 


1.  Relievable  in  equity  upon  general  princi- 

ples. 

2.  Statement  of  leading  cases  upon  this  subject. 


3.    Where  no  definite  contract  closed,  no  relief 
can  be  granted. 


§  118.  1.  It  is  well  known  that  courts  of  equity  will  relieve 
against  fraud  practised  by  the  agents  of  railways,  in  building-con- 
tracts, the  same  as  in  other  cases  of  fraud.  But  the  importance 
and  peculiar  nature  of  these  contracts  will  justify  a  brief  note  of 
the  cases  decided  upon  the  subject. 

*  2.  The  most  important  case  in  the  English  books  upon  this 
subject,  is  that  of  Ranger  v.  The  Great  Western  Railway,  which 
we  have  just  referred  to  upon  another  point.1     And  the  statement 

1  1  Railw.  C.  1 ;  s.  c.  3  Railw.  C.  298.  On  appeal  in  the  House  of  Lords,  27 
Eng.  L.  &  Eq.  35,  41 ;  s.  c.  13  Sim.  368 ;  5  Ho.  Lds.  72.  In  regard  to  fraud, 
on  the  part  of  railway  companies,  in  building-contracts,  the  Lord  Chancellor 
said :  "  The  first  ground  on  which  the  appellant  rests  his  title  to  relief  is,  that  he 
was  induced  to  enter  into  the  contract  by  the  fraud  of  the  company;  that  the 
sum  at  which  he  agreed  to  do  the  works  was  far  below  what  he  would  have 
required  had  he  known  the  real  nature  of  the  soil  through  which  the  tunnels  were 
to  be  made  ;  but  on  this  point  he  had  been  misled  by  the  fraudulent  contrivance 
of  the  respondents.  The  case  made  by  the  bill  on  this  head  is,  that  there  being 
on  the  line  of  the  road  to  be  made  for  the  railway  in  the  neighborhood  of  Bristol 
three  kinds  of  stone,  sandstone,  Dunns,  or  Dunn  stone,  and  Pennant  or  Hanham 
stone,  of  which  the  first  (that  is,  sandstone)  is  comparatively  soft  and  easy  to 
work,  whereas  the  other  two  kinds  (particularly  the  latter)  are  hard  and  difficult 
to  work,  the  company  acting  through  Mr.  Brunei,  their  engineer,  fraudulently 
contrived  to  make  the  appellant  believe  that  the  cuttings  would  be  through  the 
softer  material  (sandstone),  and  not  through  Dunns  or  Pennant  stone,  whereas 
the  fact  was,  as  they  well  knew,  that  the  line  was  chiefly  through  the  harder  sorts 
of  stone.  The  bill  represents,  that,  for  the  purpose  of  enabling  persons  desirous 
of  contracting  to  make  the  road  along  the  line  included  in  the  contract  described 
as  1  B,  to  tender  for  the  same,  it  was  necessary  that  in  different  parts  of  that 
portion  of  the  intended  line  pits  should  be  sunk,  called  '  trial  pits,1  in  order  that 
the  nature  of  the  strata  might  be  previously  known;  and  accordingly  that  the 
respondents  did  sink  ten  such  pits,  but  that  eight  of  them  were  only  sunk  to  the 
deptli  of  a  few  feet,  and  were,  therefore,  of  little  or  no  use  in  showing  what 
would  be  the  nature  of  the  soil  at  the  level  of  the  line  of  the  railway,  which  was 
at  a  very  considerable  depth  below  the  surface:  and  the  other  two  were  sunk 
respectively  to  depths  of  78  and  i>i>  feet  only,  at  points  where  the  intended  line 

[*427] 


448  CONSTRUCTION   OF   RAILWAYS.  PART  IV. 

*  of  that  case,  in  the  House  of  Lords,  by  the  Lord  Chancellor 
inworth,  is  a  better  commentary  than  elsewhere  exists,  *  upon 

of  road  was  in  one  case  112  feet  and  in  the  other  97  feet  below  the  surface,  so 
that  these  two  pits  did  not  reach  the  level  of  the  railway,  in  one  case  by  34  feet, 
and  in  the  other  by  12  feet.  The  bill  further  alleges  that  the  soil  dug  out  of  all 
of  the  said  pits  was  laid  on  the  surface  near  the  mouth,  and  showed  apparently  a 
substratum  of  sandstone,  the  workmen  employed  to  sink  the  pits  having  by  direc- 
tion- from  the  company  ceased  to  dig  when  they  reached  the  hard  stone,  except 
that  out  of  the  bottom  of  one  of  the  deep  pits  some  Dunn  stone  was  taken,  but 
which  had  crumbled  away  when  exposed  to  the  air. 

"  The  bill  then  goes  on  to  charge,  in  substance,  that  the  company,  with  knowl- 
edge that  the  cuttings  would  have  to  be  made  through  the  harder  sorts  of  stone, 
caused  notice  to  be  given  by  advertisement,  that  they  were  ready  to  receive 
tenders  according  to  certain  printed  forms  circulated  for  the  purpose,  and  the 
nature  of  the  works  to  be  done  was  to  be  ascertained  from  a  specification 
deposited  in  their  office  at  Bristol.  The  specification  described  the  works  for 
which  the  tender  was  to  be  made.  The  printed  form  of  tender  contained  an 
undertaking  by  the  party  tendering,  not  only  that  he  would  do  the  contract  works 
at  a  specified  sum,  but  also  that  he  would  do  any  extra  works,  and  make  any 
alterations  in  or  additions  to  the  original  works  which  might  be  deemed  expedient 
in  the  course  of  their  progress,  on  being  paid  for  the  same  according  to  certain 
rates  set  out  in  a  schedule  of  prices  annexed  to  the  tender.  The  different  heads 
under  which  charges  were  to  be  made  by  the  contractor,  in  respect  of  such  extra 
or  altered  works,  were  all  printed  as  part  of  the  form  of  tender,  and  the  party 
tendering  was  to  write  against  each  such  head  the  price  at  which  he  would  agree 
to  be  bound  to  do  the  same  works  of  the  nature  there  referred  to.  Amongst  the 
works  so  to  be  done  was  the  excavating  clay,  shell,  and  sandstone,  but  there  was 
no  mention  in  the  schedule  of  any  other  stone.  Neither  Dunn  stone  nor  Pennant 
are  referred  to  by  name ;  and  the  suggestion  of  the  bill  is,  that  the  omission  of 
any  mention  of  Dunn  or  Pennant  stone  was  a  contrivance,  or  part  of  a  con- 
trivance, for  the  purpose  of  leading  the  persons  tendering,  to  suppose  that  they 
might  make  their  calculations  on  the  footing  of  there  being  no  hard  stone  to  be 
cut  through,  —  a  supposition  which  would  be  confirmed  by  the  trial  pits,  out 
of  which  no  hard  stone  had  been  dug,  except  the  small  portion  of  Dunn  stone 
from  one  of  the  pits,  which,  as  I  have  already  stated,  crumbled  away  when 
exposed  to  the  air. 

"  The  appellant  was  resident  in  London,  and  in  order  to  enable  him  to  make 
his  tender,  he  sent  down  to  Bristol  an  agent,  Thomas  Lloyd,  whom  he  represents 
as  a  competent  judge  in  such  matters,  to  examine  the  line  of  the  proposed  works, 
so  as  to  enable  him  to  form  a  correct  judgment  as  to  what  would  be  a  fair  amount 
to  be  tendered.  The  bill  states  that  Lloyd  accordingly  proceeded  to  Bristol  in 
the  month  of  March,  1836,  surveyed  the  line  and  inspected  the  trial  pits,  and 
that,  reasonably  supposing  the  two  principal  pits  to  have  been  sunk  to  the  level, 
and  not  finding  amongst  the  excavated  material  accumulated  on  the  surface  any 
thing  but  soft  or  loose  stone,  —no  Pennant  or  Hanham  stone,  —  he  concluded 
that  there  would  be  no  cutting  through  hard  stone  ;  and  the  sum  tendered  was 
calculated  on  that  basis.     It  was,  according  to  the  bill,  impossible  for  Lloyd  to 

[*428,  429J 


§  118.       FRAUDS  IN  CONTRACTS  FOR  CONSTRUCTION.         449 

this  subject.  The  general  subject  of  fraud  in  railway  companies, 
in  regard  to  building  contracts,  is  somewhat  considered  in  a  late 
case  in  the  Supreme  Court  of  Vermont.2 

get  down  to  or  near  the  bottom  of  the  two  principal  trial  pits,  in  consequence  of 
th  ir  being  nearly  filled  up  with  rubbish  and  water  before  he  examined  them. 
The  appellant,  therefore,  contends  that  he  was  imposed  upon  as  to  the  nature  of 
the  work  he  had  to  perform,  and  so  agreed  to  do  it  on  terms  to  which,  but  for  the 
deception  practised  upon  him,  he  would  not  have  consented.  The  question  on 
this  part  of  the  case  is  one  of  fact.  Is  it  established  that  any  imposition  wa8 
practised  on  the  appellant  to  induce  him  to  enter  into  the  contract  ?  For  if  there 
was,  he  was  clearly  entitled  to  relief,  —  whether  precisely  that  which  he  asks  for 
is  another  question.  Strictly  speaking,  a  corporation  cannot  of  itself  be  guilty 
of  fraud ;  but  where  a  corporation  is  formed  for  the  purpose  of  carrying  on  a 
trading  or  other  speculation  for  profit,  such  as  forming  a  railway,  these  objects 
can  only  be  accomplished  through  the  agency  of  individuals ;  and  there  can  be 
no  doubt  that  if  the  agents  employed  conduct  themselves  fraudulently,  so  that,  if 
they  had  been  acting  for  private  employers,  the  persons  for  whom  they  were 
acting  would  have  been  affected  by  their  fraud,  the  same  principles  must  prevail 
where  the  principal  under  whom  the  agent  acts  is  a  corporation.  The  question, 
therefore,  on  this  part  of  the  case  is  whether  the  directors,  or  the  engineers, 
or  agents,  whom  they  employed,  were  guilty  of  the  fraudulent  misrejn-esenta- 
tions  alleged  by  the  bill.  I  am  clearly  of  opinion  that  no  such  case  is  made 
out.  [His  lordship  here  stated  the  nature  of  the  evidence  on  this  point,  and 
continued]  :  — 

"  Two  engineers,  Mr.  Frere  and  Mr.  Babbage,  both  say  that  the  appellant 
had  ample  opportunity,  by  means  of  the  trial  pits  and  cuttings,  of  ascertaining 
the  nature,  of  the  soil  and  strata;  and  the  circumstances  of  the  case  satisfy  me 
that  this  must  be  true.  The  work  to  be  done  was  of  a  laborious,  difficult,  and 
expensive  character.  The  notices  calling  for  tenders  had  been  circulated  for 
many  weeks,  and  even  months,  and  Avould  naturally  excite  the  attention  of  con- 
tractors of  eminence,  who  would  be  drawn  to  the  spot.  I  cannot  attribute  to 
the  company  the  fraudulent  intention  imputed  to  them  —  an  intention  as  absurd 
as  it  would  have  been  fraudulent  —  of  meaning  to  mislead  those  who  should  apply 
to  make  tenders  for  the  work,  when  they  must  have  felt  that  the  success  of  such  a 
fraud  must  entirely  depend  on  the  very  improbable  chance,  that  those  who  should 
be  attracted  by  the  notices  would  omit  to  make  inquiry  into  the  nature  of  the 
soil  they  would  have  to  excavate.  The  work  was  not  one  of  a  trifling  nature ; 
one  of  the  persons  who  made  a  tender  demanded  above  £100,000.  The  tenders 
were,  in  the  first  instance,  to  be  made  before  the  1st  March,  1836;  and  until 
nearly  a  fortnight  after  that  date  the  two  principal  trial  pits  had  been  open,  and 
free  from  water,  so  that  there  was  nothing  to  prevent  any  contractor  from  him- 
self ascertaining  to  what  depth  it  had  been  cut,  and  what  was  the  soil  at  the 
bottom  ;  and  though  by  the  12th  March  a  great  deal  of  water  had  entered,  and 


2  Herrick  v.  The  Vermont  Central  Kailw.,  27  Vt.  673;  s.  c.  1  Redf.  Am. 
Railw.  Cases,  305. 

2fJ  [*429] 


450  CONSTRUCTION   OF   RAILWAYS.  PART  IV. 

Bui   if   is  clear  that  where  no  binding  and  complete  con- 
tract  has  been  entered  into  by  the  company,  although  the  tenders 

irtially  clicked  the  two  principal  pits,  yet  Mr.  Frere  says  the  company  and 
their  engineers  were  always  ready  to  facilitate  the  appellant's  investigation  as  to 
the  nature  of  the  soil  and  strata. 

••  lie'  appellant,  in  his  bill,  assumes  that  sandstone  and  Pennant  stone  are  two 
different  kinds  of  stone,  but  this  is  not  the  conclusion  at  which,  on  the  evidence, 
I  arrive.  '  Pennant  stone,'  says  Mr.  Brunei,  '  is  a  species  of  sandstone,  and  the 
i .nl \  Bpecies  in  the  neighborhood  of  Bristol  of  sufficient  hardness  to  be  used  for 
bridges,  or  other  strong  masonry.'  And  Mr.  Frere  says  that  it  is  extensively 
osed  in  Bristol,  and  is  the  hardest  sort  of  sandstone  found  in  that  neighborhood, 
except  the  Brandon  Hill  stone.  Dunn  stone,  according  to  the  same  witness,  is 
merely  a  local  term  for  a  particular  variety  of  shale,  and  is  frequently  found  in 
cuttings  along  with  sandstone.  This  explanation  fully  justifies  the  language  of 
the  tenders,  without  supposing  that  the  materials  to  be  excavated  and  removed 
were  there  mentioned  by  the  company  for  any  purpose  of  deception.  The  soil 
to  he  removed  was  sufficiently  designated  as  consisting  of  clay,  shale,  and  sand- 
Btone,  the  latter  term  comprehending  all  sandstone,  hard  as  well  as  soft;  that  is 
Pennant  or  Hanham  stone  (which  is  in  truth  only  Pennant  stone  found  at  Han- 
ham),  as  well  as  ordinary  sandstone.  In  the  contract  2  B,  the  expression  occurs, 
'  compact  gray  sandstone,  commonly  called  Hanham  stone.'  It  was  for  the  appel- 
lant, before  he  made  a  tender,  to  satisfy  himself  as  to  the  probable  hardness  of 
the  sandstone  to  be  removed,  which,  after  all,  could  never  be  ascertained  before- 
hand with  perfect  certainty.  By  examining  the  trial  pits  and  cuttings,  and  mak- 
ing inquiries  of  the  engineers,  he  might  have  ascertained  the  depth  to  which  the 
piis  had  been  sunk,  and  the  nature  of  the  soil  through  which  they  had  penetrated, 
and  at  which  they  had  arrived.  The  cuttings,  according  to  the  evidence  of  Mr. 
Frere,  exhibited  sandstone,  Pennant,  and  Dunn  stone ;  and  the  old  quarry  in 
Fox's  Wood  showed  Pennant. 

"In  these  circumstances,  I  think  it  is  impossible  to  believe  that  there  was  any 
thing  like  contrivance  to  mislead  the  appellant  or  any  other  contractor;  and  it  is 
char  that  the  appellant,  if  there  was  no  fraud,  was  bound  to  satisfy  himself  on 
the  subject;  for  the  specification  of  the  proposed  works,  submitted  to  him  before 
the  tender  was  made,  expressly  stipulates  that  the  contractor  must  satisfy  himself 
of  the  nature  of  the  soil,  and  of  all  matters  which  can  in  any  way  iniluence  his 
contract.  This,  though  of  course  it  would  not  absolve  the  company  from  the 
of  any  fraudulent  contrivances  to  mislead,  yet  certainly,  in  the 
absi  ace  of  fraud,  threw  on  the  appellant  the  obligation  of  judging  for  himself. 
I  must  In  ih  r  add,  that  I  cannot  believe  the  appellant  to  have  been  really  mis- 
n  as  to  the  nature  of  the  soil,  except,  possibly,  that  the  proportion  of  hard  stone 
was  greater  than  he  had  imagined  he  should  find.  I  come  to  this  conclusion 
from  the  fact,  that  the  specification,  which  was  submitted  to  him  before  he  made 
the  tender,  provides  for  the  construction  of  the  Avon  bridge,  and  other  masonry, 
by  means  of  the  Stone  to  be  obtained  from  the  cuttings.  Now,  Mr.  Brunei  says 
thai  Pennant  is  the  only  sandstone  in  the  neighborhood  of  Bristjpl  of  sufficient 
hardness  to  be  used  for  masonry.  The  appellant  either  did  know  or  might  have 
known  this  when  he  made  his  tender,  and  it  is  surely  impossible  for  him,  in  the 

[*430] 


§  119.  engineer's  estimate.  451 

made  by  a  contractor  have  been  accepted  by  their  engineer, 
authorized  to  act  on  their  behalf,  and  the  contractor  has  incurred 
*  expense  upon  the  faith  of  having  the  contract,  in  preparation  to 
fulfil  it,  there  being  certain  alternatives  in  the  tender,  which  had 
not  been  decided  upon,  and  the  whole  thing  being  given  up  and 
no  specific  contract  made  under  the  seal  of  the  company,  equity 
can  grant  no  relief.3  For  if  there  was  no  contract  equity  could 
not  create  one,  and  if  there  was  a  valid  contract  the  remedy  at 
law  is  adequate. 


SECTION     XV. 

Engineer 's  Estimate  wanting  through  Fault  of  Company. 


1.  In  such  case  contractor  may  maintain  bill 

in  equity. 

2.  Grounds  of  equitable  interference. 

3.  After  company   terminate   contract,  con- 

tractor will  be  enjoined  from  interference. 
And  same  rule  sometimes  extends  to  com- 
pany. 

4.  Stipulation  requiring  engineer's  estimate, 

not  void. 

5.  Not  the  same  as  an  agreement,  that  all  dis- 

putes shalfbe  decided  by  arbitration. 


6.  Engineer's  estimate  proper  condition  pre- 

cedent. 

7.  Same  as  sale  of  goods,  at  the  valuation  of 

third  party. 

8.  The  result  of  all  the  English  cases  seems  to 

be,  that  only  the  question  of  damages 
properly  referable  to  the  engineer. 

9.  The  rule  in  this  respect  different,  in  this 

country. 


§  119.  1.  Where,  by  the  terms  of  a  railway  construction  con- 
tract, executed  under  the  seals  of  the  parties,  the  work  is  to  be 

face  of  such  a  clause  in  the  specification,  to  say  that  lie  did  not  know  there  would 
be  any  beds  of  Pennant  stone  —  that  is,  of  stone  capable  of  being  used  for 
masonry  —  to  be  excavated  or  removed.  It  is  not  unworthy  of  observation, 
that  Mr.  Stanton,  one  of  the  persons  who  made  a  tender,  in  his  schedule  of 
prices  as  to  the  sum  which  he  would  require  for  working  sandstone,  obviously 
points  to  the  difference  which  might  exist  in  the  expense  of  removing  sandstone 
of  different  qualities ;  and  he  did  not,  like  the  appellant  and  the  other  persons 
who  made  tenders,  offer  one  fixed  uniform  sum  for  sandstone  of  every  quality, 
but  he  required  for  moving,  &c,  sandstone  from  open  cuttings,  Is.  id.  to  2s.  2d., 
and  from  tunnels,  2s.  9c?.  to  4s.  6rf. ;  from  which,  I  think,  it  may  be  fairly  in- 
ferred that  he  understood  the  word  '  sandstone1  used  in  the  schedule  to  include 
stone  of  different  degrees  of  hardness;  some  more  expensive  to  work,  some  less 
so.  To  all  these  considerations  must  be  added,  that  the  appellant  did  not,  so 
far  as  there  is  any  evidence  on  the  subject,  make  any  remonstrance  as  to  the 
supposed  deception  or  mistake  during  the  progress  of  the  works,  nor  until  alter 
the  relation  between  the  parties  had  been  entirely  determined." 

3  Jackson  v.  The  ^'orth  Wales  Kailw.,  1  Hall  &  T.  75 ;  s.  c.  G  Railw.  C.  112. 

[*431] 


I  ,J  CONSTRUCTION    OF   RAILWAYS.  PART  IV. 

paid  for,  Prom  time  to  time,  upon  the  estimate  and  approval  of 
the  company's  principal  engineer,  and  the  amount  and  quality 
ul  the  win  k  finally  to  be  determined,  in  the  same  mode,  no  ac- 
tion, either  at  law  or  in  equity,  can  be  maintained  until  such 
estimate  and  approval  is  obtained,  unless  it  is  prevented  by  the 
fault  <>f  the  company.  But  where  no  such  engineer  is  furnished 
by  the  company,  or  where  through  their  connivance  he  neglects 
to  act,  the  contractor  is  not  without  remedy,  in  equity.1  Lord 
Chancellor  Cottenham,  in  affirming  this  decision,2  says  :  — 

•J.  "  It  is  true  that  the  specification  and  contract  constitute  a 
relationship  between  the  plaintiffs  and  the  defendants,  which,  if 
correctly  acted  upon,  would  have  given  to  the  plaintiffs  a  legal 
*  right,  and  a  legal  right  only,  to  the  benefits  they  claimed  by  this 
bill.  But  if  the  facts  stated  in  the  bill  are  such  as,  if  true,  de- 
prive the  plaintiffs  of  the  means  of  enforcing  such  legal  rights, 
and  if  those  facts  have  arisen  from  the  conduct  of  the  defend- 
ants, or  of  their  agent  so  recognized  by  the  specification  and 
contract,  and  now  used  for  the  fraudulent  purpose  of  defeating 
the  plaintiffs'  claim  altogether,  the  defendants  cannot  resist  the 
plaintiffs'  claim  in  equity  upon  the  ground  that  their  remedy  is 
only  at  law ;  nor  is  it  any  answer  to  show  that,  if  the  plaintiffs 
cannot  get  at  law  what  they  contracted  for,  they  may  obtain 
compensation  in  damages.  It  is  no  answer  to  a  bill  for  specific 
performance  that  the  plaintiffs  may  bring  an  action  for  damages 
for  a  breach  of  the  contract,  or,  in  a  proper  case  of  a  bill  for  dis- 
covery of  some  specific  chattels,  that  damages  may  be  recovered 
in  trover,  —  the  language  of  pleading  is  not  that  the  plaintiffs  have 
no  remedy,  but  no  adequate  remedy  save  in  a  court  of  equity. 
It  is  therefore  no  answer  in  the  present  case  for  the  defendants 
to  urge,  that  if  they  or  their  agent  have  been  neglectful  of  what 
they  undertook  to  do,  by  which  the  plaintiffs  have  suffered,  they 
may  be  liable  in  damage  to  the  plaintiffs.  They  contracted  for 
a  specific  thing,  and  are  not  bound  to  take  that,  or  something  in 
lieu  of  it,  if  such  other  thing  be  not  what  this  court  considers  as 
a  fair  equivalent.     I  do  not  therefore  consider  that  any  answer 

1  Mcintosh  r.  The  Great  Western  Railw.,  2  De  G.  &  S.  758.  This  is  the 
decision  of  the  Vice-Chancellor,  which  came  before  the  Lord  Chancellor,  as  men- 
tioned  in  note  2. 

-  M.-Intosh  v.  The  Great  Western  Railw.,  2  Hall  &  T.  250:  s.  c.  2  Mac.  & 
(..  74. 

[•432] 


§  119.  engineer's  estimate.  453 

is  given  to  the  plaintiffs'  right  to  file  a  bill  in  this  court  by  show- 
ing that  the  ground  upon  which  they  seek  their  right  so  to  do, 
namely,  the  being  barred  of  their  legal  remedy  by  the  conduct 
of  the  defendants,  may  subject  them  to  damages  at  law." 

3.  And  where  disputes  arose  between  the  contractor  and  the 
company,  each  charging  default  upon  the  other's  part,  and  claim- 
ing the  right  to  occupy  the  works,  and  the  workmen  of  both 
coming  in  collision,  upon  the  line  of  the  road,  and  the  comple- 
tion and  opening  of  the  road  being  delayed  in  consequence,  the 
court,  on  the  application  of  the  company,  restrained  the  contractor 
from  continuing  on  the  line. or  interfering  with  the  operations  of 
the  company,  but  directed  an  account  of  what  was  due  the  con- 
tractor, without  regard  to  the  former  certificates  of  the  company's 
engineer,  and  an  issue  to  try  whether  the  company  were  justified 
in  removing  the  contractor,  reserving  all  claims  for  loss  and  com- 
pensation till  the  final  hearing.3 

*  And  in  a  somewhat  recent  case,4  by  the  terms  of  the  contract  it 
was  provided,  that  if  the  contractor  made  default  the  company  might 
themselves  complete  the  line,  and  that  the  plant,  &c,  upon  the 
line  belonging  to  the  contractor  should  become  the  property  of 
the  company,  and  be  set  off  against  the  debts,  if  any,  due  from 
him  to  the  company,  and  that  the  contractor  should  not  hinder 
the  company  from  using  the  same.  Default  having  been  made 
by  the  contractor,  the  company  completed  the  line  and  were  pro- 
ceeding to  remove  the  plant,  &c.  An  arbitration  was  pending 
to  decide  the  question  of  amount  between  the  contractor  and  the 
company.  It  was  held  that  the  company  must  be  enjoined  from 
removing  the  plant  before  award  given. 

Lord  Romilly,  M.  R.,  here  suggests  that  the  company  have  no 
right  to  take  the  plant  until  it  appears  that  the  contractor  is  in- 
debted to  them  ;  but  we  should  have  said  that  under  such  a  con- 
tract the  fair  construction  is  that  the  company  may  take  and  use 
the  plant  in  completing  the  line,  making  themselves  debtor  to 
the  contractor  for  the  same.  The  purpose  of  such  a  stipulation 
presumptively  is,  that  the  work  may  not  be  interrupted  by  the 
change  of  hands  from  the  contractor  to  the  company.  But  after 
the  road  is  completed,  so  far  as  the  contract  extended,  and  the 

3  East  Lancashire  Railw.  v.  Hattersley,  8  Hare,  72. 

4  Garrett  v.  Salisbury  &  Dorset  Junction  Railw.,  Law  Rep.  2  Eq.  358 ;  s.  c. 
12  Jur.  (N.  S.)  495. 

[*433] 


45  I  CONSTRUCTION   OF   RAILWAYS.  PART  IV. 

company  bad  made  no  use  of  the  plant,  the  view  suggested  by  his 
Lordship  seems  entirely  just  and  reasonable. 

I.  The  question  of  the  right  to  recover  at  all  at  law,  without 
procuring  the  engineer's  estimate,  where  that  is  made  a  condi- 
tion precedent  in  the  contract,  has  been  considerably  discussed 
in  the  English  courts,  and  especially  in  the  important  case  before 
the  House  of  Lords,  in  July,  1856  ;5  and  the  result  arrived  at 
Beems  to  be,  that  such  a  clause  in  a  contract,  in  regard  to  the  basis 
of  recovery,  is  not  equivalent  to  a  stipulation  that  no  action  shall 
be  brought,  or  that  the  case  shall  not  come  before  the  courts  of 
law  or  equity,  which  has  long  since  been  determined  to  be  repug- 
nant and  void.6 

5.  The  distinction  is  somewhat  refined,  and  difficult  of  exact 
definition,  but  it  seems  to  us  not  altogether  without  foundation. 
A  stipulation,  that  no  action  shall  ever  be  brought  upon  a  con- 
tract, *  or,  what  is  equivalent,  that  all  disputes  under  it  shall  be 
referred  to  arbitration,  is  a  repugnancy,  which  if  carried  out  lit- 
erally must  render  the  contract  itself,  as  a  mode  of  legal  redress, 
wholly  idle.  And  it  is  only  in  this  view  that  contracts  are  to  be 
considered  by  the  courts. 

6.  But  a  stipulation  that  the  liability  under  a  contract  or  cove- 
nant shall  not  accrue,  except  upon  the  basis  of  certain  previously 
ascertained  facts,  where  the  contract  contains  provisions  for  ascer- 
taining them,  by  the  action  of  either  party,  without  the  concurrence 
of  the  other,  is  no  more  than  a  limitation  upon  the  right  of  action, 
as  that  no  action  shall  be  brought  until  after  one  year,  or  unless 
commenced  within  six  months,7  which  have  been  held  valid.  And 
even  where  the  concurrence  of  both  parties  is  requisite  and  the 
performance  of  the  condition  fails  through  the  refusal  of  one,  it 
probably  is  the  same  as  to  the  other  as  if  performed. 

7.  Hence  a  contract  to  purchase  goods  at  the  valuation  of  N. 
and  M.,  cannot  be  made  the  foundation  of  an  action,  without  obtain- 
ing the  valuation  stipulated,  or  showing  that  the  other  party  hin- 
dered it.8  And  in  some  cases  it  has  been  held,  that  if  the  obtaining 
of  the  estimate  is  withheld  or  defeated  by  the  fraud  of  the  other 

'  Scott  v.  Avery,  5  Ho.  Lds.  811;  s.  c.  36  Eng.  L.  &  Eq.  1. 
8  Thompson  v.  Charnock,  8  T.  R.  139.     See  also  Tattersall  v.  Groote,  2  B. 
&  P.  181. 

7  Wilson  v.  .Etna  Ins.  Co.,  27  Vt.  99,  and  cases  there  cited. 
1  Tl.urnell  v.  Balbirnie,  2  M.  &  W.  786 ;  Milnes  v.  Gery,  14  Vesey,  400. 
[*484J 


§  119.  engineer's  estimate.  455 

party,  that  no  action  at  law  will  lie,  the  only  remedy  being  by  a 
special  action  for  the  fraud,  or  in  equity,  perhaps.9 

8.  This  subject  is  very  elaborately  discussed  by  the  judges  be- 
fore the  House  of  Lords,  in  the  case  of  Scott  v.  Avery,5  and  it  is 
remarkable  how  wide  a  difference  of  opinion  was  found  to  exist, 
upon  a  question  which  might  seem  at  first  blush  so  simple.  Of 
the  nine  judges  who  gave  formal  opinions,  three  were  opposed  to 
allowing  any  force  whatever  to  such  a  stipulation.  And  of  the 
*  other  six,  four  held  that  only  the  question  of  damages  can  properly 
be  made  to  depend,  as  a  condition  precedent,  upon  the  award  of  an 
arbitrator,  while  two  held  that  the  award  may  be  made  to  include 
all  matters  of  dispute  growing  out  of  the  contract,  which  it  seems 
to  us  must  be  regarded  as  equivalent  to  saying  that  no  action  at 
law  or  in  equity  shall  be  brought  to  determine  any  controversy 
growing  out  of  the  contract,  which  all  the  judges  agree  is  a  void 
stipulation.  We  therefore  feel  compelled  to  adopt  the  view  that 
upon  principle,  and  the  fair  balance  of  authority,  such  a  stipula- 
tion, in  regard  to  estimating  labor  or  damages,  under  a  contract 
for  construction,  is  valid,  and  may  be  treated  as  a  condition  prece- 
dent, but  that  beyond  that,  the  present  inclination  of  the  English 
courts  is  to  hold  that  it  is  repugnant  to  sound  policy,  and  subver- 
sive of  the  legal  obligation  of  the  contract,  as  being  equivalent 
to  a  stipulation  that  no  action  at  law  shall  be  brought  upon  the 
contract,  but  only  upon  the  award,  if  not  paid. 

9.  But  the  balance  of  authority  in  this  country  seems  to  be  in 
favor  of  allowing  such  a  condition  precedent,  in  this  class  of  con- 
tracts, to  extend  to  the  quality  of  the  work,  as  well  as  the  quan- 
tity, and  to  the  question,  whether  the  work  is  progressing  with 
sufficient  rapidity,  and  whether  the  company  on  that  account  are 

9  Milncr  v.  Field,  5  Exch.  829.  But  in  a  later  case  in  the  same  court  it  is 
said  that  the  award  must  be  obtained,  or  it  must  be  shown  that  it  is  no  longer 
practicable  to  obtain  it.  Brown  v.  Overbury,  11  Exch.  715;  s.  C.  34  Eng.  L.  & 
Eq.  610.  This  rule,  with  the  qualification  that  the  defendant  by  his  own  act  or 
refusal  had  rendered  the  performance  of  the  condition  impracticable,  is  now,  in 
this  country  certainly,  held  such  an  excuse  as  will  enable  the  party  to  sue  in  a 
court  of  law.  United  States  v.  Robeson,  9  Peters  (U.  S.),  319,  326.  And 
in  a  case  in  Pennsylvania,  Snodgrass  v.  Gavit,  28  Penn.  St.  221,  Mr. 
Justice  Woodward  assumes  it  as  the  unquestionable  rule,  in  that  state,  that 
''where  parties  stipulate  that  disputes,  whether  actual  or  prospective,  shall  be 
submitted  to  the  arbitrament  of  a  particular  individual,  or  tribunal,  they  are 
bound  by  their  contract,  and  cannot  seek  redress  elsewhere." 

[M35] 


456 


CONSTRUCTION    OF    RAILWAYS. 


PART  IV. 


justified  in  putting  an  end  to  the  contract.9  It  seems  reasonable 
to  ns.  on  many  grounds,  that  contracts  of  this  magnitude  and 
oharacter  should  receive  a  somewhat  different  interpretation  in 
this  respect  from  that  which  is  applied  to  the  ordinary  commercial 
transactions  of  the  country,  as  has  been  held  in  regard  to  pecun- 
iary penalties.10  We  should  not  therefore  feel  justified  in  in- 
timating any  desire  to  see  the  American  cases  on  this  subject 
qualified. 


SECTION    XVI. 


Contracts  for  Materials  and  Machinery. 


1.  Afanufai  tun  r  not  liable  for  latent  defect  in 

matt  rials. 

2.  Contractfor  railway  sleepers,  terms  stated. 

3.  Construction  of  such  contract. 


4.  Parti/  may  waive  stipulation  in  contract, 

by  acquiescence. 

5.  Company  liable  for  materials,  accepted  and 

used. 


§  120.  1.  In  a  contract  for  fire  engines,  it  was  stipulated  that 
the  engines  and  tender  should  be  subject  to  the  performance  of 
*  one  thousand  miles,  with  proper  loads,  the  manufacturers  to  be 
liable  for  any  breakage  which  may  occur  through  defect  of  ma- 
terials or  workmanship,  but  not  where  it  occurs  from  collision, 
neglect,  or  mismanagement  of  the  company's  servants,  or  any 
other  cause,  except  the  two  first  named.  The  trial  to  take  place 
within  one  month  from  the  day  on  which  any  engine  is  reported 
ready  to  start,  in  default  of  which  the  manufacturers  to  be  re- 
Leased  from  all  responsibility.  It  was  specially  agreed  the  fire- 
boxes should  be  of  copper,  7-10ths  of  an  inch  thick.  One  of  the 
engines,  so  supplied,  performed  the  thousand  miles  according  to 
the  contract ;  but  some  months  after  the  fire-box  burst,  when  it 
was  discovered  that  the  copper  was  reduced  to  3-16ths  of  an  inch 
in  thickness,  it  being  conceded  it  was  originally  of  the  thickness 
required  by  the  contract.  In  an  action  for  the  price  of  the  engine, 
which  by  the  contract  was  to  be  paid  upon  the  satisfactory  comple- 
tion of  the  trial,  it  was  held  the  defendants  could  not  give  evidence 

10  Ante,  §§  116,  117.     Under  the  English  statute,  the  Railway  Arbitration 
Act,  agreements  between  companies  to  refer  all  disputes  between  them  to  arbi- 
tration, are  peremptorily  enforced  by  the  courts.     Llannelly  Railw.  &  Dock  Co. 
v.  London  <fe  N.  W.  Kailw.,  20  W.  II.  898. 
[*436] 


§  120.  CONTRACTS   FOR   MATERIALS    AND   MACHINERY.  457 

of  such  defect  in  the  copper,  no  fraud  being  alleged,  and  that,  by 
the  terms  of  the  contract,  the  three  months'  trial  having  been  satis- 
factory, released  the  manufacturers  from  all  responsibility  in  re- 
spect of  bad  materials  and  workmanship.1 

2.  In  a  contract  for  railway  sleepers,2  it  was  stipulated  that  the 
plaintiffs  below  should  supply  the  defendants  below  with  350,000 
sleepers,  the  contract  before  having  recited  that  the  defendants 
were  desirous  of  being  supplied  with  that  number  of  railway  sleep- 
ers. The  contract  specified  that  the  plaintiffs  were  willing  to  sup- 
ply them  according  to  a  specification  and  tender,  which  stated  that 
the  number  of  sleepers  required  was  350,000,  that  one-half  would 
have  to  be  delivered  in  1847,  and  the  remainder  by  midsummer, 
1848  ;  and  the  contract  also  contained  a  covenant  to  supply  the 
sleepers  within  the  time  specified,  "  as,  and  when,  and  in  such 
quantities,  and  in  such  manner,"  as  the  engineer  of  the  company 
by  orders  in  writing,  "  from  time  to  time  or  at  any  time,  within 
the  time  limited  by  the  specification,  should  require."  The  deed 
also  contained  a  provision,  that  the  engineer  might  vary  the  time 
of  delivery,  that  the  company  should  retain  in  their  hands  £2,000 
as  security  for  the  performance  of  the  contract,  and  should  pay  it 
over  within  two  months  after  the  sleepers  had  been  delivered,  and 
*  that  the  contract  might  be  determined  upon  the  default  or  bank- 
ruptcy of  the  plaintiffs. 

3.  It  was  held  that  there  was  an  implied  covenant  on  the  part 
of  the  company  to  take  the  whole  number  of  350,000  sleepers ; 
That  an  order  by  the  engineer  was  a  condition  precedent  to  any 
delivery  of  the  sleepers  by  the  plaintiffs ;  That  the  company  were 
bound  to  cause  such  order  to  be  given  within  the  time  limited  by 
the  specification  ;  That  although  the  engineer  had  power  to  alter 
the  time  for  the  delivery  of  the  sleepers,  such  power  was  to  be 
exercised  within  the  period  limited  by  the  specification  ;  That  the 
engineer,  as  to  matters  in  which  he  had  a  discretion,  e.g.  as  to 
varying  the  time  of  delivery  of  the  sleepers,  stood  in  the  position  of 
arbitrator  between  the  parties,  but  as  to  giving  the  order  for  the  deliv- 
ery he  was  a  mere  agent  of  the  company  ;  That  the  only  legitimate 
rule  of  construction  is  to  ascertain  the  meaning  from  the  language 

1  Sharp  o.  The  Great  Western  Railw.,  2  liaihv.  C.  722  ;  s.  c.  it  M.  &  W.  7. 

a  The  Great  Northern  Railw.  v.  Harrison,  14  Eng.  L.  &  Eq.  L89,  L2  C.  B. 
570,  in  the  Exchequer  Chamber,  from  the  C.  P. ;  s.  C.  8  Eng.  L.  &  Eq.  WJ,  11 
C.  B.  815. 

[*437] 


158 


CONSTRUCTION    OF    RAILWAYS. 


PART  IV. 


used  in  the  instrument,  coupled  with  such  facts  as  are  admissible 
in  evidence,  to  aid  its  explanation. —  Per  Parke,  B. 

1.  1 1  has  been  held,  also,  in  a  contract  with  a  railway  company 
to  deliver  iron,  "near  the  months  of  July  and  August,"  and  the 
delivery  continuing  till  the  25th  of  October,  and  the  company  not 
ting  to  receive  it,  that  they  were  bound  by  the  terms  of  the 
contract,  one  of  which  was  that  they  were  to  give  their  notes  for 
each  parcel  of  iron  as  it  was  shipped.3 

5.  So,  too,  under  the  English  statute,4  which  provides  that  the 
directors  of  a  railway  company  may  contract  by  parol,  on  behalf 
of  the  company,  where  private  persons  may  make  a  valid  parol 
contract,  it  was  held,  where  the  agent  of  the  company  agreed  by 
parol  with  the  plaintiff  to  purchase  of  him  a  quantity  of  railway 
sleepers  upon  certain  terms,  the  sleepers  being  delivered  and  used 
by  the  company,  that  they  were  liable.5 


♦SECTION    XVII. 


Contract  to  Pay  in  the  Stock  of  the  Company. 


Breach  of  such  contract  generally  entitles 

the.  party  to  recover  the  nominal  value  of 

stock. 
But  if  the  party  have  not  strictly  performed 

on   his  part,  can   only  recover  market 

value. 


3.  Cash  portion  overpaid,  will  only  reduct 
stock  portion  dollar  for  dollar. 

n.  2.  Lawful  incumbrance  on  company's  prop- 
erty, will  not  excuse  contractor  from  ac- 
cepting stock. 


§  121.  1.  In  many  contracts  for  construction,  the  whole  or  a 
portion  of  the  price  is  stipulated  to  be  paid  in  the  stock  of  the  com- 
pany, as  the  work  progresses,  at  certain  stages,  or  when  it  is  com- 
pleted. The  time,  place,  and  mode  of  payment  in  such  cases,  will 
be  the  same  ordinarily  as  in  other  contracts  for  payment  of  stock. 

1  Bailey  v.  The  Western  Vermont  Railw.,  18  Barb.  112.  It  was  also  held, 
here,  that  the  refusal  of  the  company  to  give  their  notes,  as  stipulated,  excused 
the  plaintiff  from  delivering  or  tendering  the  remainder  of  the  iron,  until  the 
company  Bhould  tender  their  notes,  and  entitled  plaintiff  to  sue  presently. 

*  8  &  9  Vict.  c.  16. 

3  Paulding  v.  London  &  North  W.  Railw.,  8  Exch.  867;  s.  c.  22  Eng.  L.  & 
'•      I  he  <  ontract  was  made  by  the  engineer's  clerk,  who  was  also  clerk 
"I  t!i-  company,  hut  there  was  evidence  of  the  assent  of  the  committee.     Lowe 
v.  London  &  North  W.  Railw.,  18  Q.  B.  632;  s.  c.  14  En".  L.  &  Eq.  18. 
[*438] 


§  121.  PAYMENTS   IN   STOCK   OP   THE   COMPANY.  459 

If  the  company  refuse  or  neglect  to  deliver  the  stock  or  the  proper 
certificates  when  it  becomes  due,  upon  proper  request  or  oppor- 
tunity, they  are  generally  liable,  it  is  considered,  as  in  other  cases 
of  failure  to  perform  contracts,  for  a  certain  amount  or  value,  in 
collateral  articles  expressed  in  currency.1 

2.  But  it  was  held,  that  where  the  plaintiff  recovered  a  balance 
due  on  equitable  grounds,  and  not  on  the  ground  of  strict  and 
full  performance  of  the  contract,  he  was  precluded  on  like  equita- 
ble grounds  from  recovering  more  for  the  stock  portion  of  the 
contract  than  its  market  value  at  the  commencement  of  the 
action.2 

1  Moore  v.  Hudson  River  Railw.,  12  Barb.  156.  It  was  held,  in  this  case, 
that  where  a  portion  of  the  price  of  construction  was  payable  in  stock,  at  par, 
within  thirty  days  after  the  completion  of  the  contract,  the  company  were  not 
bound  to  make  any  tender  of  the  stock,  as  in  case  of  contracts  for  specific  arti- 
cles. But  that  it  was  a  payment  in  depreciated  currency,  and  no  tender  neces- 
sary. In  a  recent  English  case,  Be  Alexandra  Park  Co.,  12  Jur.  (N.  S.) 
482,  where  the  contractor  stipulated  to  accept  a  portion  of  his  pay  in  stock,  at 
the  election  of  the  company,  it  was  held  he  was  not  bound  by  such  an  election 
after  the  company  was  ordered  to  be  wound  up  as  insolvent,  as  the  shares  thereby 
become  extinguished. 

2  Barker  v.  T.  &  R.  Railw.,  27  Vt.  7G6.  In  this  case  the  court  say:  "If 
the  defendants  have,  upon  reasonable  request,  declined  paying  the  amount  due, 
in  their  stock,  as  stipulated,  it  would  seem  but  reasonable  they  should  pay  the 
amount  in  money.  "1.  This  is  the  general  rule  in  regard  to  contracls  payable 
in  collateral  articles,  estimated  in  currency  and  not  delivered.  2.  The  stock 
of  a  corporation  is  but  a  certificate  of  such  a  sum  being  due  the  bearer. 
And  when  the  party  stipulated  to  pay  in  his  own  paper,  if  he  refuse,  suit 
may  be  brought  immediately,  although  the  paper  was  to  have  been  on  time, 
if  given.  But  it  was  never  supposed  the  party  could  reduce  the  recovery, 
by  showing  his  paper  depreciated  in  the  market.  This  would  be  virtually 
giving  the  difference  to  the  other  stockholders.  This  would  be  the  rule  which 
should  be  applied  if  defendants  are  wilfully  in  fault.  If  it  were  the  stock  of 
another  company,  no  doubt,  all  which  could  be  recovered  is  the  value  of  the 
stock  in  the  market.  Certainly,  this  is  the  general  rule  in  regard  to  stock.  And, 
perhaps,  that  rule  should  be  applied  to  the  stock  of  the  defendants,  if  it  appears 
they  have  not  wilfully  and  unreasonably  refused  to  deliver  the  stock."  Ante, 
§  38.  But  if  the  contractor  perform  extra  work  he  is  entitled  to  recover  for 
that,  in  money,  upon  an  implied  promise,  notwithstanding  by  his  contract  he 
was  to  accept  part  of  his  pay  in  stock  for  all  work  done  under  the  contract. 
Childs  v.  Som.  &  Ken.  Railw.,  Cir.  Ct.  U.  S.  Maine  District,  May  1,  1857. 
20  Law  Rep.  561.  In  the  case  of  Cleveland  &  Pittsburg  Railw.  v.  Kelley, 
5  Ohio  (N.  S.),  180,  it  is  held,  that  where  one-fourth  of  the  amount  due  the 
contractors  is  to  he  taken  in  the  stock  of  the  company,  and  the  company  refuse 
to  deliver  the  stock  on  rcuest,  tliev  are  only  liable  for  the  market  value  of  the 

[*4C8J 


460  CONSTRUCTION    OF   RAILWAYS.  PART  IV. 

So,  too,  where  the  work  is  to  be  paid  partly  in  stock  and 
partly  in  money,  if  the  money  part  be  overpaid,  even  by  doing  a 

stock  at  the  time  it  should  have  been  delivered.  The  court  profess  to  base  their 
opinion  upon  the  ground  that  in  contracts  of  this  character  there  is  not  under- 
stood to  be  any  election  reserved  by  the  company  to  pay  either  in  their  stock, 
or  in  money,  but  that  it  is  an  absolute  undertaking  to  deliver  so  much  stock  as 
shall,  at  its  par  value,  be  equal  to  one-fourth  the  amount  due  the  contractor. 
It  does  not  readily  occur  to  us  how  this  relieves  the  question  from  the  apparent 
violation  of  principle,  in  allowing  the  company  to  refuse  to  give  certificates  of 
their  own  stork  which  they  have  contracted  to  do,  and  at  the  same  time  pay 
less  than  its  par  value.  It  is,  in  ordinary  cases,  equitable,  no  doubt,  and 
always  where  the  refusal  is  upon  the  ground  that  nothing  is  due  the  con- 
tractor.  The  point  of  the  decision  is  thus  summed  up  by  Mr.  Justice  Swan. 
'•  For  these  reasons  we  are  of  the  opinion  that  no  such  election  was  contemplated 
by  either  of  the  parties  when  the  contract  was  entered  into  ;  that  the  law  relating 
to  trade  notes  and  contracts  of  a  like  kind,  has  no  application  to  the  agreement 
between  these  parties;  that  it  was  an  exchange  of  work  for  stock,  in  which 
monetary  terms  were  necessarily  used,  not  for  the  purpose  of  expressing  real 
values,  but  as  the  only  mode  of  expressing  quantities  and  proportions  ;  that  the 
fourth  to  be  taken  in  stock  was  not  a  money  indebtedness,  but  a  stock  indebted- 
ness;  and,  consequently,  that  the  company  could  derive  no  benefit  from  the 
Increased  value  of  the  stock,  and  could  suffer  no  loss  by  its  depreciation;  the 
damages  which  the  contractors  suffered  from  the  non-delivery  of  the  stock  being 
its  market  value."     Ante,  §  121,  n.  2. 

See  also  Boody  v.  Rut.  &  Bur.  Railw.  (Cir.  Ct.  U.  S.)  24  Vt.  660.  In  this 
case  it  was  held,  that  the  defendants  having  given  their  creditors  a  mortgage 
upon  their  road,  after  the  contract  with  the  plaintiff",  did  not  excuse  him  from 
accepting  the  stipulated  proportion  of  the  payments  in  stock.  Nor  can  the 
contractors,  in  such  case,  refuse  to  receive  the  stock,  because  the  legislature, 
in  the  mean  time,  altered  the  charter  of  the  company,  by  which  the  capital 
stock  and  debt  of  the  company  were  increased  ;  nor  because  the  company  voted 
not  to  pay  interest  on  the  stock  in  money,  as  they  had  before  done,  it  not 
appearing  that  the  value  of  the  stock  had  been  affected  by  either.  Moore  v. 
Hudson  River  Railw.,  12  Barb.  156.  And  where  a  company,  in  settlement  with 
a  contractor,  agreed  to  pay  him  a  certain  amount,  in  stock,  or  the  bonds  of  the 
company,  at  his  election,  the  company  retaining  the  same  as  security  for  certain 
liabilities  on  account  of  the  contractor,  and  gave  the  contractor  a  certificate  of 
such  stork,  with  an  agreement  endorsed,  to  exchange  it  for  bonds,  at  his  elec- 
tion, and  the  certificates  were  then  returned  to  them,  as  their  indemnity ;  it  was 
held,  that  the  company  were  bound  to  deliver  the  bonds,  notwithstanding  the 
trea  urer  had  entered  the  shares  in  the  books  of  the  company  as  the  property  of 
the  contractor,  and  they  had  in  consequence  been  sold  upon  execution  against 
him.  Jones  v.  Portsmouth  &  Concord  Railw.,  32  N.  H.  544.  A  contractor 
who  agrees  to  take  a  portion  of  his  pay  in  the  bonds  of  the  company,  has  no 
such  interest  in  any  question,  in  regard  to  their  validity,  as  will  prevent  a  court 
of  equity  from  enjoining  those  of  a  county,  which  had  been  delivered  to  the 
company  without  a  proper  compliance  with  the  conditions  of  the  statute,  under 

[*439] 


§  122  TIME    AND   MODE   OF  PAYMENT.  4G1 

*  portion  of  the  work,  which  the  party  reserved  the  right  to  do  in 
order  to  hasten  the  work,  it  will  only  reduce  the  stock  payment 

*  dollar  for  dollar,  and  not  according  to  the  market  value  of  the 
stock  at  the  time.3 


SECTION    XVIII. 
Time  and  Mode  of  Payment. 


1.  No  time  specified,  payment  due  only  when 

ivork  completed. 

2.  Stock  payments    must   ordinarily   be    de- 

mand' d. 


3.  But  if  company  pay  monthly,  such  usage 

qualifies  contract. 

4.  Contract  to  build  wall  by  cubic  yard,  im- 

plies  measurement  in  the  wall. 


§  122.  1.  Where  no  time  of  payment  is  specified  in  terms  in  the 
written  contract  between  the  parties  for  the  construction  of  a  por- 
tion of  a  railway,  it  was  held,  that  looking  to  the  contract  alone 
the  contractor  could  not  call  for  payment  either  of  the  cash  or 
stock  portion  of  the  contract,  until  a  complete  performance  of  the 
contract  on  his  part.1  Or,  upon  the  most  favorable  construction, 
until  some  distinct  portion  of  the  work,  for  which  the  contract 
fixed  a  specific  price,  was  accomplished.1 

2.  In  regard  to  the  stock  portion  of  the  payments,  a  special  de- 
mand was  necessary  before  the  contractor  could  maintain  an  action 
for  it.1 

*  3.  But  where  it  appeared  that  the  company  were  accustomed 
to  make  monthly  payments  to  their  contractors,  upon  the  estimates 
of  the  engineer,  at  the  end  of  each  month,  and  that  they  had  so 
dealt  with  the  plaintiff,  it  was  held  that  this  must  be  considered 
the  rule  of  payment  under  the  contract,  established  by  mutual 
consent  and  binding  upon  the  parties.1 

4.  A  contract  to  build  "  riprap  "  wall  for  fifty  cents  a  cubic  yard, 
in  the  absence  of  proof  of  any  general  usage  or  uniform  custom 
which  could  control  the  mode  of  measurement,  was  held  to  imply 
payment  by  the  cubic  yard  after  the  wall  was  constructed.2 

which  the  subscription  was  made,  the  contractor  having  had  knowledge  of  the 
facts  from  the  first.  Mercer  County  v.  Pittsburgh  &  Erie  Railw.,  27  Penn.  St. 
389. 

3  Jones  &  Dow  v.  Chamberlain,  80  Vt.  196. 

1  Boody  v.  Rut.  &  Bur.  Railw.,  24  Vt.  660  (U.  S.  Cir.  Ct.). 

*  Wood  v.  Vermont  Central  Railw.,  24  Vt.  008. 

[*440-442] 


462  CONSTRUCTION   OF   RAILWAYS.  PART  IV. 

SECTION    XIX. 
A'«  medy  on  Contracts  for  Railway  Construction. 

1.  Recovery  on  general  counts.  |  2.  Amount  and  proof  governed  by  contract. 

§  123.  1.  It  is  a  familiar  principle  of  law  applicable  to  contracts 
for  the  performance  of  work  and  labor,  that  if  the  work  is  done  so 
that  nothing  more  remains  but  payment,  there  is  no  necessity  of 
declaring  specially  upon  the  contract,  but  the  recovery  may  be  had 
under  the  general  counts ;  and  it  will  make  no  difference  in  this 
respect  that  it  was  not  done  within  the  time  prescribed  by  the  con- 
tract, if  the  work  has  been  accepted  by  the  other  party,  or  the  time 
for  performance  extended  by  such  party,  or  the  work  has  been  done 
upon  some  permanent  property  of  the  other  party,  as  in  the  case 
of  building  a  railway.1 

2.  But  ordinarily  the  contract  will  govern  as  to  price  and  other 
incidents,  so  far  as  it  can  be  traced.  But  where  the  party  for 
whom  the  labor  is  performed  wilfully  hinders  and  obstructs  the 
progress  of  the  work,  it  has  been  held  he  was  liable,  as  upon  a 
quantum  meruit.1  But  in  such  case  the  party  must  prove  the  per- 
formance of  the  labor,  by  such  proof  as  would  be  competent  in  an 
action  on  the  special  contract,  and  cannot  treat  the  dealing  as  if 
it  had  been  matter  of  account  from  the  first.1 


-SECTION    XX. 
Mechanic's  Lien. 

h  lien  cannot  exist  in  regard  to  a  rail-  I  2.   Opinion  of  Scott,  J. 
uray. 

§  123  a.  1.  It  has  been  considered  that  although  a  public  railway 
may  come  within  the  literal  import  of  the  terms  used  in  a  statute, 
to  secure  material-men  and  laborers,  by  what  is  denominated  a 
mechanic's  lien  upon  "  buildings  or  other  improvements,"  yet  that 

'  Merrill  o.  Jtluiea  &  Owego  Railw.,  1G  Wendell,  586;  s.  c.  2  Am.  Railw. 
C.  421. 

[*443] 


§123  5.       REMEDIES   OF   LABORERS    AND   SUB-CONTRACTORS. 


463 


the  public  have  such  an  interest  in  public  works  of  this  character, 
that  it  cannot  reasonably  be  presumed  that  such  terms  were  in- 
tended to  include  the  bridges  and  culverts  upon  the  line  of  a  pub- 
lic railway.1 

2.  The  language  of  Scott,  J.,  shows  the  ground  of  the  decision. 
"  Although  railway  companies  in  some  respects  resemble  private 
corporations,  yet,  as  they  are  organized  for  the  public  benefit,  the 
state  takes  a  deep  interest  in  them,  and  regards  them  as  matters  of 
public  concern.  The  establishment  of  this  railway  is  regarded  as 
a  public  work  established  by  public  authority,  intended  for  the 
public  use  and  benefit."  The  learned  judge  argues,  that  such  a 
lien  to  be  effectual  must  be  liable  to  defeat  the  object  of  the  work, 
and  therefore,  and  as  the  legislature  have  provided  a  specific 
remedy  for  laborers,  it  is  not  to  be  supposed  that  a  mechanic's  lien 
also  exists  in  regard  to  the  structures  on  the  works. 


SECTION    XXI. 


Remedies  on  behalf  of  Laborers  and  Sub-contractors. 


1.  Sub-contractors  not  bound  by  stipulations 

of  contractor. 

2.  Laborers   on   public  works  have  a  claim 

against  the  company. 


3.  But  a  sub-contractor  cannot  o  against  the 
proprietor  of  the  works,  although  laborers 
employed  by  him  may. 


§  123.  b.  1.  A  sub-contractor  who  has  completed  his  work  to  the 
acceptance  of  the  engineers  appointed  to  pass  upon  its  sufficiency, 
is  entitled  to  recover  of  the  contractor  the  sum  retained  upon  his 
*  estimates,  as  security  for  the  completion  of  the  work,  notwith- 
standing any  deficiency  in  the  performance  of  the  contractor, 
whereby  he  is  himself  unable  to  recover  such  deficiency  of  the 
company.1 

2.  By  statute  in  many  of  the  states,  the  workmen  upon  a  rail- 
way, although  in  the  employment  of  the  contractor,  have  a  claim 
for  any  arrears  of  wages,  not  exceeding  a  certain  period,  upon  the 
company,  and  this  provision  has  been  held  to  extend  equally  to  work- 


1  Dunn  v.  North  Missouri  Railw.,  24  Mo.  493.     See  McAuley  v.  Western 
Vermont  Railw.,  '■>'■'>  Vt.  311;  s.  c.  1  Redf.  Am.  Railw.  Cases,  245. 
1  151air  o.  Corby,  29  Mo.  480,  486. 

[*444] 


4G4  CONSTRUCTION   OF   RAILWAYS.  PART  IV. 

men  employed  by  sub-contractors.2  And  the  provisions  of  this 
Btatute  being  only  a  matter  of  general  police,  will  be  equally  bind- 
in--  upon  all  railway  companies,  whether  chartered  before  or  after 
the  passing  of  the  statute.2 

3.  Bui  the  sub-contractor  himself  cannot  pass  by  his  immediate 
employers  and  maintain  an  action  against  the  principal  proprietor 
of  t bo  work.3 


SECTION    XXII. 
Conditions  in  Charier  and  Election. 

1.  Such  conditions  must  be  performed,  waived,  I  2.   Company  bound  by  its  election, 
or  extended.  I 

§  123  c.  1.  There  have  commonly  been  some  limitation's  an- 
nexed to  the  exercise  of  the  powers  conferred  upon  railway  com- 
panies, as  that  the  building  of  the  road  should  be  begun  before 
some  prescribed  day ;  and  ordinarily  a  certain  amount  of  money 
expended,  and  the  road  completed  and  in  operation  within  some 
other  prescribed  time.  These  conditions  must  of  course  be  fairly 
and  justly  complied  with,  or  else  the  time  extended  by  the  legislat- 
ure, which  may  be  implied  from  an  additional  grant  of  power,  as 
well  as  from  an  express  statute  for  that  specific  purpose.1 

.2.  As  a  general  rule  the  practical  construction  which  the  com- 
pany give  of  its  own  charter,  by  the  location  and  construction  of 
its  road,  will  be  held  binding  upon  the  company.  And  where  the 
company  have  an  election  or  discretion  as  to  the  route  on  which  it 
will  build  its  road,  its  actual  construction  will  be  regarded  as  hav- 
ing exhausted  such  right,  and  it  cannot  thereafter  adopt  a  new 
route,  although  coming  within  the  terms  of  the  charter  as  origi- 
nally granted.2 

anahan  v.  Hannibal  &  St.  Joseph  Railw.  Co.,  30  Mo.  546.  See  also 
Mc(  lluskey  v.  Cromwell,  11  N.  Y.  593;  Kent  v.  N.  Y.  Cent.  Railw.,  12  id.  628; 
!'•  t,  i  •  r.  St.  Louis  &  Iron  M.  Railw.  Co.,  23  Mo.  107. 

'  Branin  v.  Conn.  &  Pass.  Railw.  Co.,  31  Vt.  214;  Lake  Erie,  &c.,  Railw. 
I    ..  v.  Eckler,  13  In.l.  07.     See  Boswell  v.  Townsend,  37  Barb.  205. 
1  Foster  v.  Fitch,  36  Conn.  236. 

:  Morris  &  Essex  Railw.  v.  Central  Railw.,  2  Vroom,  205  ;  Cleveland  &  Pitts- 
burgh Railw.  v.  Speer,  56  Penn.  St.  325. 
[*444] 


124. 


EXCESSIVE   TOLLS,    FARE,    AND   FREIGHT. 


465 


*CHAPTER    XVI. 


EXCESSIVE    TOLLS,    FARE,    AND    FREIGHT. 


1.  English  companies  created  sometimes,  for 

maintaining  road  only. 

2.  Where  excessive  tolls  taken  may  be  recov- 

ered back. 

3.  So  also  may  excessive  fare  and  freight. 

4.  By  English  statute,  packed  parcels  must 

be  rated  in  mass. 

5.  Nature  of  railway  traffic  requires  unity  of 

management  and  control. 

6.  Tolls  upon  railways  almost  unknown  here. 

Fare  and  freight  often  limited. 

7.  Guaranty  of  certain  profit  on  investment 

lawful. 

8.  Restriction  of  freight  to  certain  rate  per 

ton,  extends  to  whole  line. 


9.  Need  not  declare  for  tolls. 

10.  Mode  of  establishing  and  requisite  proof. 

11.  A  provision  in  a  railway  charter  for  the 

payment  of  a   certain    tonnage   to   the 
state  is  only  a  mode  of  taxation. 

12.  Where  a  company  is  alloived  to  take  tolls 

on  sections  of  their  road  this  7nakes  each 
section  a  distinct  work. 

13.  14.  Discussion  of  cases  in  New  York  in 

regard  to  the  difference  between  fares 
taken  in  the  cars  and  at  the  stations. 
15.  Fares  fixed  by  statute  are  payable  in 
legal  tender  notes. 


§  124.  1.  By  the  English  statutes,  companies  are  created  who 
own  the  railway,  stations,  &c,  merely,  and  who  are  empowered  to 
demand  certain  tolls  of  other  persons,  or  companies,  for  the  use 
of  such  road. 

2.  In  such  cases,  if  illegal  tolls  are  demanded  and  paid,  the 
excess  may  be  recovered  back,  as  money  had  and  received,  to  the 
use  of  the  person  paying  it,  upon  the  general  principles  of  law 
applicable  to  the  subject  of  tolls,  and  the  demand  and  receipt  of 
excessive  tolls.1  Where  the  English  statute2  gave  the  company 
the  right,  where  any  person  should  fail  to  pay  the  toll  due  upon 
any  carriage,  to  detain  and  sell  the  same,  it  was  held  incumbent 
upon  the  company  first  to  demand  the  sum  due  for  toll,  and  that 
this  was  a  condition  precedent  to  the  right  to  sell  under  the 
statute.3     It  was  also  considered  here  that  a  charge  for  transport- 

1  Fearnley  v.  Morley,  5  B.  &  C.  25.  See  also  this  subject  very  extensively 
examined  in  Centre  Turnpike  Co.  v.  Smith,  12  Vt.  212;  post,  §  143.  Tolls  are 
a  payment  for  passing  along  the  line  of  the  railway,  and  should  be  received  with 
reference  to  the  number  of  carriages  passing.  Simpson  v.  Denison,  10  Hare, 
51;  s.  c.  13  Eng.  L.  &  Eq.  359. 

2  8  &  9  Vict.  c.  20,  §  97. 

3  Field  v.  Newport,  Ab.  &  Hereford  Railw.,  3  H.  &  N.  409. 

vol.  i.  30  [*445] 


tilt',  EXCESSIVE   TOLLS,    FARE,    AND    FREIGHT.  PART  IV. 

rag  carriages  back  is  not  a  toll,  but  something  which  may  be  com- 
pensated  by  special  agreement  between  the  parties;  and  if  it  be 
demanded  as  part  of  the  *  toll,  being  an  illegal  claim,  as  such,  it 
vitiates  the  entire  demand  and  renders  it  illegal. 

3.  And  the  same  rule  has  been  extended  to  the  recovery  of 
money  overpaid  upon  an  exorbitant  and  illegal  demand  of  freight 
or  fare  by  railways.  And  the  recovery  may  be  had,  although 
the  person  paying  it  did  not  tender  any  specific  sum,  as  due,  and 
although  a  portion  of  the  overcharge  was  on  account  of  what  was 
claimed  to  be  due  another  company.4 

4.  And  under  the  English  statutes,  packed  parcels  of  the  same 
class  are  required  to  be  rated  in  mass.5 

5.  Most  of  the  business  upon  public  railways,  in  this  country,  and 
in  England,  at  the  present  time,  is  almost  of  necessity  transacted 
by  the  companies  themselves.  The  very  nature  of  the  business 
seems  to  require  absolute  unity  in  the  management  and  control 
of  the  traffic,  and  especially  in  this  country,  where  a  large-  pro- 
portion of  the  roads  are  operated  upon  a  single  track,  requiring 
the  utmost  watchfulness  and  circumspection  to  avoid  collisions. 
"We  suppose  the  idea  of  operating  a  railway,  with  large  traffic,  in 
England,  upon  a  single  track,  would  be  regarded  as  too  glaring 
an  absurdity  to  be  seriously  entertained,  although  they  have  some 
unimportant  single  track  railways.  But  in  this  country  it  is  rather 
the  rule  than  the  exception,  and  many  of  the  continental  railways 
in  Europe  have  only  a  single  track. 

6.  The  matter  of  tolls  upon  railways  is  a  thing  almost  unknown 
in  this,  country,  and  very  little  practised  anywhere  at  present. 
I '.ut  the  English  special  acts,  and  the  American  railway  charters, 
very  often  fix  the  maximum  of  freight  and  fare  which  it  shall  be 

4  Parker  v.  The  Bristol  &  Exeter  Railw.  Co.,  6  Exch.  702 ;  s.  c.  6  Railw.  C. 
77        -  e  also  Snowden  v.  Davis,  1  Taunt.  359;  Atlee  v.  Backhouse,  3  M.  & 
W.  633;  and  Spry  v.  Emperor,  6  M.  &  W.  639,  where  the  general  subject  is 
discussed.      In   Parker  v.  The  Great  Western  Railw.  Co.,  3  Railw.  C.  563,  the 
very  point  is  decided.     Crouch   v.  London  &  N.  W.  Railw.   Co.,  2  Car.  &  K. 
1   rouch  v.  Great  Northern  Railw.,  25  Eng.  L.  &  Eq.  449. 
'  Parker  o.  The  Great  Western  Railw.  Co.,  11  C.  B.  545;  s.  c.  8  Eng.  L.  & 
Eq.   126.      Tins  subject  of  overcharge  and  the  right  to  recover  back  the  excess, 
ssed  in  this  case,  and  in  the  case  of  Edwards,   Assignee   of 
Edwards,  v.  The  Great   Western  Railw.  Co.,  11  C.  B.  588;  s.  c.  8  Eng.  L.  & 
Eq.   !47;  Crouch  v.  Great  Northern  Railw.  Co.,  9  Exch.  556;  s.  c.  2d  Eng.  L. 
A:  Eq.  449. 
[*440] 


§  124.  EXCESSIVE   TOLLS,    FARE,   AND    FREIGHT.  467 

lawful  for  the  company  to  receive,  and  if  tolls  are  allowed  to  be 
taken  of  other  companies  or  persons,  these  also  are  limited. 

*  7.  A  guaranty  of  a  certain  amount  of  profit  to  the  company, 
by  other  companies,  in  consideration  of  the  right  to  use  the  track 
of  such  company,  is  lawful.0 

8.  The  restriction  in  the  charter  of  the  Camden  &  Amboy  Rail- 
way of  freight  to  eight  cents  per  ton  per  mile,  extends  to  the  whole 
distance  of  the  line  of  said  company,  although  some  of  it  is  by 
water,  and  includes  the  auxiliary  roads  through  New  Brunswick 
and  Trenton.7 

9.  In  an  action  to  recover  tolls  due  to  a  railway  it  is  not  neces- 
sary to  describe  the  dues  as  tolls.  Any  description  which  suffi- 
ciently identifies  the  nature  of  the  service  for  which  compensation 
is  demanded,  is  all  that  is  required.8 

10.  Freights  upon  a  railway  may  be  established  by  the  directors, 
or  by  their  agents  ;  and  their  assent  will  be  presumed,  if  nothing 
appear  to  the  contrary.8  And  where  the  directors  are  required  to 
establish  freights,  and  they  do  establish  a  printed  tariff,  that  is  to 
be  regarded  as  the  original ;  and  where  copies  of  such  tariff  are 
required  to  be  posted  at  the  depots  or  stations  of  the  company,  that 
affords  sufficient  excuse  for  the  absence  of  such  copies  to  justify 
the  admission  of  secondary  evidence.8 

11.  A  provision  in  the  charter  of  a  railway  company  that  it  shall 
pay  a  certain  tonnage  to  the  state  upon  all  freight  transported  by 
it,  is  only  a  mode  of  taxation,  and  is  not  in  conflict  with  any  pro- 
vision of  the  United  States  Constitution  securing  to  Congress  the 
exclusive  power  of  regulating  commerce  with  foreign  nations  and 
among  the  states,  and  prohibiting  the  states,  without  the  consent 

6  Great  N.  Railw.  v.  S.  Yorkshire  Railw.,  9  Exch.  642. 

7  Camden  &  Amboy  Railw.  v.  Briggs,  1  N.  J.  (Zab.)  406. 

Where  one  company  leased  its  line  to  another,  at  a  certain  [rate,  for  all  min- 
erals transported,  among  other  commodities,  it  was  held,  that  the  owners  of 
minerals  transported  upon  such  line,  could  not,  by  injunction,  compel  the  lessees 
to  transport  minerals  upon  the  same  terms  on  which  they  agreed  with  the  other 
company,  by  way  of  compensation  to  them,  the  latter  being  a  rent  merely,  and 
not  a  rate  of  toll  or  freight.  Finnie  v.  Glasgow  &  Southwestern  Railw.  Co., 
2  Mrqn.  Ho.  Lds.  177. 

8  .Manchester  &  Lawrence  Railw.  v.  Fisk,  33  N.  II.  "297.  Where  a  railway 
company  was  limited  by  charter  to  a  "  toll  not  exceeding  four  cents  per  ton  per 
mile  on  merchandise  and  two  cents  a  mile  on  each  passenger,"  it  was  held  the 
company  mi^,ht  charge  for  transportation  in  addition  to  the  toll.  Boyle  V.  Phil.  & 
Reading  Railw.,  54  Fenn,  >s>.  810. 

[*447] 


168  EXCESSIVE   TOLLS,    FARE,   AND    FREIGHT.  PART  IT. 

of  Congress,  from  levying  duties  on  imports  and  exports.  The 
company  by  accepting  the  charter  containing  such  a  provision, 
virtually  made  an  express  contract  to  perform  it,  and  have  no 
just  cause  of  complaint,  treating  the  provision  either  as  a  law  or 
itract.8 
•  L2.  Ami  a  provision  in  the  charter  of  a  railway  company  or 
other  road  company,  that  it  may  demand  tolls  upon  any  particu- 
lar | Kiit ion  of  its  road  as  soon  as  completed  and  in  operation, 
has  been  construed  to  create  such  portion  a  distinct  public  work, 
not  liable  to  be  affected  by  failure  to  complete  the  remainder  of 
the  work  embraced  in  the  same  charter.  But  if  the  work  is  not 
done  in  a  proper  manner,  that  will  be  a  cause  of  forfeiture  not 
cured  by  the  provision  allowing  tolte  to  be  levied  upon  distinct 
portions  of  the  entire  line.10  But  it  is  here  left  in  doubt  whether 
such  defect  in  construction  will  operate  to  forfeit  the  entire  road 
or  only  those  sections  where  such  defects  occur. 

13.  We  have  discussed  the  question  of  railway  companies 
making  a  discrimination  between  fares  paid  in  the  cars  and  at 
their  stations.11  Under  the  New  York  statute,  which  allows  of 
this  discrimination  only  where  the  company  keep  their  ticket 
office  open,  it  was  held  the  company  could  only  make  that  dis- 
crimination in  the  cases  specified  in  the  statute,  and  not  in  other 
cases,  even  if  the  passenger  took  the  cars  after  midnight,  the 
company  being  required  to  keep  the  ticket  office  open  only  until 
nine  o'clock,  p.m.12 

14.  This  question  is  still  further  discussed  in  a  later  case ; 13 
but  the  questions  turned  chiefly  upon  the  construction  of  the  stat- 
ute in  force  there,  requiring  the  company  to  keep  all  their  ticket 
offices  open  one  hour  before  the  trains  start,  except  between  9 
P.M.,  and  w  a.m.,  when  they  are  only  required  to  do  so  at  Utica 
and  other  principal  offices,  and  which  also  enacts,  that  if  any  per- 
son shall,  at  any  station  where  a  ticket  office  is  kept  open,  enter 
the  cars  as  a  passenger,  without  having  first  purchased  a  ticket,  it 

9  Pennsylvania  Railw.  v.  The  Commonwealth,  3  Grant's  Cas.  128.     As  to  the 
right  to  tax  shares  in  a  corporation  for  county  purposes,  see  Lycoming  County 
imble,  17  Penn.  St.  106. 
0  The  People  v.  J.  &  M.  Plank-Road  Co.,  9  Mich.  285. 
11  Ante,  §  28. 

11  Chase  v.  N.  Y.  Central  Railw.,  26  N.  Y.  523. 
13  Nellia  v.  N.  Y.  Central  Railw.,  30  N.  Y.  505. 
[*448] 


§  124.  EXCESSIVE   TOLLS,    FARE,   AND    FREIGHT.  469 

shall  be  lawful  for  the  company  to  require  five  cents  extra  fare  of 
such  person  ;  and  it  was  decided  that  the  extra  fare  could  only  be 
demanded  where  the  company  kept  a  ticket  office  open.  And  it  will 
make  no  difference  that  the  passenger  entered  the  cars  at  an  hour 
when  the  ticket  offices  were  required  to  be  kept  open,  if  such  was 
not  the  fact.  It  was  also  held,  that  the  company,  by  so  demanding 
■*and  receiving  the  five  cents  extra  fare  when  not  entitled  to  re- 
ceive it,  became  liable  to  the  penalty  of  $50,  under  the  statute,  for 
taking  more  fare  than  allowed  by  law. 

15.  Where  the  company  is  restricted  by  statute  to  the  charge  of 
two  cents  fare  per  mile,  that  will  not  justify  their  demanding  fares 
in  gold,  or  its  equivalent  in  currency.  A  fare  is' a  debt,  within  the 
terms  of  the  act  of  Congress  creating  the  legal  tender  notes,  and 
is  payable  in  that  currency,  as  much  as  any  other  debt.14 

14  Lewis  v.  N.  Y.  Central  Railw.,  49  Barb.  330. 

[*449J 


PART   Y. 

THE  LAW  OF  LIABILITY  FOR  FIRES ;  INJURIES 
TO  DOMESTIC  ANIMALS;   FENCES. 


PART   Y. 

THE  LAW  OF  LIABILITY  FOR  FIRES ;  INJURIES 
TO  DOMESTIC  ANIMALS;   FENCES. 


^CHAPTER    XVII. 


LIABILITY   FOR   FIRES,   COMMUNICATED   BY   COMPANY'S   ENGINES. 


1.  Fact  of  fires  being  communicated  evidence 

of  negligence. 

2.  This  was  at  one  time  questioned  in  Eng- 

land. 

3.  Opinion  o/"Tindal,  C.  J.,  upon  this  point. 

4.  English  companies  feel' bound  to  %ise  pre- 

cautions against  fire. 

5.  Rule  of  evidence,  in  this  country,  more  fa- 

vorable to  companies. 

6.  But  the  company  are  liable  for  damage  by 

fire  through  want  of  care  on  their  part. 

7.  One  is  not   precluded  from    recovery,  by 

placing  buildings  in  an  exposed  situa- 
tion. 

8.  Where  insurers  pay  damages  on  insured 

property,  may  have  action  against  com- 
pany. 


10 


11 


9.    Where  company  made  liable  for   injury 
to  all  property,  are  allowed  to  insure. 
Construction  of  statutes  making  compa- 
nies liable  for  loss  by  fires. 
Extent    of  responsibility   of  insurer  of 
goods,  to  company. 

12.  Construction   of  statute    as    to    engines 

which  do  not  consume  smoke. 

13.  Construction  of  Massachusetts  statute  and 

mode  of  trial. 

14.  15.  For  what  acts  railway  companies  may 

become  responsible  without  any  actual 
negligence. 
17  §•  n.  27.  Company  when  responsible 
for  fires  resulting  from  other  fires 
caused  by  them.  The  point  illustrated 
by  the  late  cases,  and  the  conclusion 
reached,  that  these  cases  are  not  sound. 


16 


§  125.  1.  In  the  English  courts  it  seems  to  have  been  settled, 
as  early  as  the  year  1846,1  upon  great  consideration,  that  the  fact 
of  premises  being  fired  by  sparks  emitted  from  a  passing  engine, 
is  prima  facie  evidence  of  negligence  on  the  part  of  the  company, 
rendering  it  incumbent  upon  them  to  show  that  some  precautions 
had  been  adopted  by  them  reasonably  calculated  to  prevent  such 
accidents. 

1  Piggott  v.  Eastern  Counties  Railw.  Co.,  3  C.  B.  229;  L.  &  B.  Railw.  v. 
Doak,  52  Penn.  St.  379. 

[*450] 


17  I  LIABILITY    FOR   FIRES   BY   ENGINES.  PART  V. 

2.  In  an  earlier  case,  where  the  facts  were  reported,  by  the 
judge  at  Nisi  Prius,  for  the  opinion  of  the  full  court,  that  a  stack 
of  beans  near  the  track  of  the  railway  was  fired  and  consumed 
by  sparks  from  the  company's  engine,  of  the  ordinary  construc- 
tion, and  used  in  the  ordinary  mode,  the  court  said  the  facts 
reported  did  not  show,  necessarily,  either  negligence  or  no  negli- 

That  was  a  question  for  the  jury.2 

3.  But  the  court  in  the  case  of  Pigott  v.  Eastern  Co.'s  Rail- 
way, went  much  further.  Tindal,  C.  J.,  said  :  "  The  defendants 
'  are  a  company  intrusted  by  the  legislature  with  an  agent  of  an 
extremely  dangerous  and  unruly  character,  for  their  own  private 
and  particular  advantage  ;  and  the  law  requires  of  them,  that  they 
shall  in  the  exercise  of  the  rights  and  powers  so  conferred  upon 
them,  adopt  such  precautions  as  may  reasonably  prevent  damage 
to  the  property  of  third  persons,  through  or  near  which  their  rail- 
way passes.  The  evidence  in  this  case  was  abundantly  sufficient 
to  show  that  the  injury  of  which  the  plaintiff  complains  was  caused 
by  the  emission  of  sparks  or  particles  of  ignited  coke,  coming  from 
one  of  the  defendants'  engines  ;  and  there  was  no  proof  of  any  pre- 
caution adopted  by  the  company  to  avoid  such  a  mischance.  I 
therefore  think  the  jury  came  to  a  right  conclusion,  in  finding 
that  the  company  were  guilty  of  negligence,  and  that  the  injury 
complained  of  was  the  result  of  such  negligence.  There  are  many 
old  authorities  to  sustain  this  view  ;  for  instance  the  case  of 
Mitchil  v.  Alestree,  1  Vent.  295,  for  an  injury  resulting  to  the 
plaintiff  from  the  defendant's  riding  an  unruly  horse  in  Lincoln's 
Inn  Fields ;  that  of  Bayntine  v.  Sharp,  1  Lutw.  90,  for  permitting 
a  mad  bull  to  be  at  large  ;  and  that  of  Smith  v.  Pelah,  2  Stra. 
1264,  for  allowing  a  dog  known  to  be  accustomed  to  bite  to  go 
about  unmuzzled.  The  precautions  suggested  by  the  witnesses 
called  for  the  plaintiff  in  this  case,  may  be  compared  to  the  muzzle 
in  the  case  last  referred  to.  The  case  of  Beaulien  v.  Finglam,  in 
the  Year-Books,  P.  2,  H.  4,  fol.  18,  pi.  5,  comes  near  to  this. 
There,  the  defendant  was  charged,  in  case,  for  so  negligently 
keeping  his  fire  as  to  occasion  "the  destruction  of  the  plaintiff's 
property  adjoining.  The  duty  there  alleged  was,  — ' quare  cum 
secundum  legem  et  consuetudinem  regni  nostri  Anglice  hactenus  obten* 
tarn,  quod  quilibetde  eodemregno  ignem  suum  salvo  et  secure  custo- 

2  Aldridge  v.  Great  Western  Railw.,  3  M.  &  G.  515 ;  2  Railw.  C.  852. 

[*451] 


§  125.  LIABILITY    FOR   FIRES   BY   ENGINES.  475 

diat,  et  custodire  teneatur,  ne  per  ignem  suum    damnum  aliquod 
vicinis  suis  eveniat.''  " 

4.  The  principle  of  this  case  seems  to  have  been  acquiesced  in 
by  the  railways  in  England,3  and  such  precautions  used,  as  *  to 
secure  the  engines  against  emitting  sparks.  In  this  last  case  it 
was  held  proper  evidence  to  go  to  the  jury  that  the  company's 
engines  had  before,  in  passing  along  the  line,  emitted  sparks,  a 
sufficient  distance  to  have  done  the  injury  in  the  present  case,  as  a 
means  of  ascertaining  the  possibility  of  the  building  being  fired  in 
the  manner  alleged.  The  testimony  in  this  case  showed,  that  the 
danger  of  emitting  sparks  is  very  much  increased  by  overtasking 
the  engine,  and  that  it  may  be  altogether  avoided  by  shutting  off 
the  steam  in  passing  a  place  where  there  is  danger  from  sparks,  or 
that  the  danger  may  be  guarded  against  by  mechanical  precau- 
tions. The  subject  has  been  a  great  deal  discussed  in  more  recent 
English  cases.4     In  this  case  it  was  held  by  Bramwell,  B.,  at  the 

3  Hammon  v.  Southeastern  Railw.  Co.,  Maidstone  Spring  Assizes,  1845,  before 
Lord  Denman,  C.  J.,  for  the  destruction  of  farm  buildings,  including  a  thatched 
barn,  by  sparks  emitted  from  the  defendants'  engines  in  passing  along  the  line  of 
their  railway.  There  was  evidence  of  the  fire  being  so  caused,  and  that  defend- 
ants1 engines  had  no  wire  guard,  or  perforated  plate,  to  prevent  the  escape  of 
the  sparks,  although  both  were  in  use  before  that  time.  There  was  evidence  in 
this  case  that  it  was  principally  where  the  engines  were  overtasked  that  they  were 
liable  to  emit  sparks.  His  Lordship  directed  the  jury  that  it  lay  upon  the  plain- 
tiff to  establish  negligence ;  they  were  to  consider  that  the  plaintiff  might  have 
saved  all  hazard  by  tiling  his  barn,  and  also  whether  the  train  was  driven  too  fast. 
The  plaintiff  had  a  verdict,  and  the  court  subsequently  refused  a  new  trial. 
Taylor  v.  Same  Co.  was  tried  at  same  term,  with  similar  proof  and  the  same  re- 
sult. Walford  on  Railways,  183,  184,  and  notes.  See  also  L.  &  B.  Railw.  v. 
Doak,  52  Penn.  St.  379,  where  the  same  rule  is  adopted. 

4  Vaughn  v.  Taff-Vale  Railw.,  3  H.  &  N.  743;  s.  c.  in  Exchequer  Chamber, 
5  H.  &  X.  679  ;  s.  c.  6  Jur.  (N.  S.)  899.  See  also  The  King  v.  Pease,  4  B.  &  Ad.  30, 
upon  the  authority  of  which  the  last  case  is  decided  in  Exchequer  Chamber.  In 
reference  to  the  decision  in  the  Court  of  Exchequer,  we  said  in  our  last  edition  it 
was  going  further  than  any  just  principle  would  allow,  unless  the  defendant's  busi- 
ness is  regarded  as  unlawful.  Post,  pi.  14,  15,  and  note.  The  doctrine  of  the  first 
two  cases  cited  in  this  note  is  approved  in  Hammersmith  Railw.  v.  Brand,  Law 
Rep.  4  H.  Lds.  171.  The  New  York  Couit  of  Appeals,  in  Steinweg  v.  Erie 
Railw.  43  N.  Y.  123,  hold,  that  railway  companies,  as  common  carriers,  are 
bound  to  have  such  vehicles  and  machinery  for  the  transportation  of  yxiods  a9 
the  improvements  known  to  practical  men  and  which  have  been  tested  by  practi- 
cal use,  may  suggest,  but  not  to  take  every  possible  precaution,  which  the  highest 
scientific  skill  might  suggest  or  to  adopt  any  mere  speculative  and  untried  im- 
provement. 


476  LIABILITY    FOR   FIRES   BY   ENGINES.  PART  V. 

jury  trial,  and  his  views  seem  to  have  been  sustained  by  the  Court 
of  Exchequer,  that  the  mere  fact  of  the  company  using  fire  as  a 
means  of  locomotion,  from  which  occasional  fires  will  becommuni- 
oated,  '"''II  with  the  utmost  care  to  prevent  it,  made  them  respon- 
sible lor  damage  caused  thereby.  But  in  the  Exchequer  Chamber 
the  judges  seem  to  have  been  agreed,  that  the  legislature  having 
tlized  this  mode  of  locomotion,  it  could  not  subject  the  company, 
while  pursuing  a  legal  business,  in  a  legal  mode,  to  damage  thereby 
caused  to  others,  unless  through  some  degree  of  neglect.  If  the 
company  resort  to  all  known  precautions  against  fire,  they  are  not 
liable. 

5.  But  in  this  country  it  must  be  confessed  the  rule  of  the 
liability  of  railways  for  damage  done  by  fire  communicated  by 
their  engines,  is  more  favorable  to  the  companies  than  in  England. 
It  seems  to  have  been  assumed,  in  this  country,  that  the  business 
of  railways  being  lawful,  no  presumption  of  negligence  arises  from 
the  fact  of  fire  being  communicated  by  their  engines.6  *  But  after 
other  probable  modes  of  accounting  for  the  fire  have  been  dis- 
proved, the  onus  is  on  the  company  to  prove  that  the  fire  was  not 
communicated  by  the  engines  of  their  train  passing  at  the  time.6 

6.  In  this  country  it  has  been  held,  that  proof  that  sparks  have 
upon  other  occasions  been  emitted  and  caused  fires  along  the 
line  of  the  road,  is  not  admissible,  either  to  show  that  defendants' 
engine  caused  the  damage,  or  to  rebut  defendants'  proof  of  care 
and  diligence  in  using  their  engines.7  But  the  testimony  seems  to 
have  been  received  in  other  cases.8  All  the  cases  upon  this  sub- 
ject hold  railways  bound  to  the  exercise  of  care,  skill,  and  diligence, 
to  prevent  fires  being  communicated  in  this  mode,  and  make  them 
liable  in  case  of  damage  through  their  negligence.9 

5  Rood  v.  N.  Y.  &  Erie  Railw.,  18  Barb.  80 ;  Lyman  v.  Boston  &  W.  Railw., 
4  Cush.  288;  Burroughs  v.  The  Housatonic  Railw.,  15  Conn.  124.  In  this  case 
the  court  compare  the  injury  to  that  of  fire  communicated  by  sparks  from  the 
chimney  of  a  dwelling-house.  Where  the  statute  requires  the  company  to  show 
that  the  fire  occurred  "  without  any  negligence  on  their  part,11  it  was  held  sufh- 
ci' nt  to  show  that  their  engines  were  properly  constructed,  in  good  order,  and 
had  the  usual  apparatus  for  preventing  the  escape  of  sparks,  and  were  managed 
by  discreel  persons.     B.  &  S.  R.  v.  Woodruff,  4  Maryland,  242. 

0  Sheldon  o.  Hudson  R  ver  R.,  14  N.  Y.  218. 

7  Baltimore  &  Susquehannah  Railw.  v.  Woodruff,  4  Maryland,  242  ;  post,  pi.  13. 

s  McCready  v.  The  Ra  lw.  Co.,  2  Strob.  358;  Sheldon  v.  Hudson  River 
Railw.,  11  X.  V.  218;  s.  c.  29  Barb.  226. 

onn.  124;  Huvett  v.  Phil.  &  R.  Railw.,  23  Penn.   St.  373.     The  jury 
L*453] 


§  125.  LIABILITY    FOR    FIRES    BY    ENGINES.  477 

7.  And  one  is  not  precluded  from  recovery  in  snch  cases,  by 
having  placed  his  buildings  or  other  property  in  an  exposed  posi- 
tion.10 We  cannot  forbear  to  add  that  the  interference  of  the  legis- 
latures upon  this  subject,  in  many  of  the  American  states,  seems 
to  us  an  indication  of  the  public  sense,  in  favor  of  placing  the  risk 
in  such  cases  upon  the  party  in  whose  power  it  lies  most  to  prevent 
such  injuries  occurring.  There  seems  to  us  both  justice  and  policy 
in  the  English  rule  upon  the  subject.  And  in  a  somewhat,  recent 
case,11  it  was  held,  in  actions  against  railway  companies. for  dama- 

are  to  determine  the  question  of  negligence.  Id.  The  company  are  bound  to 
use  more  can-  in  regard  to  fires  in  a  very  dry  time,  or  where  property  is  very 
much  exposed.  Id.  But  if  there  is  no  restriction  upon  the  company  in  that 
respect,  it  may  place  its  track  and  stations  in  such  proximity  to  other  .structures 
as  it  deems  essential  to  its  own  interests  and  the  public  good,  and  it  is  not  responsi- 
ble for  fires  caused  by  its  engines  except  through  neglect  of  known  and  necessary 
precautions.  Turnpike  Co.  v.  Raihv.  Co.,  54  Penn.  St.  345.  The  duty  of  rail- 
way companies  in  using  precautions  against  communicating  fires  by  their  engines 
is  here  extensively  discussed,  and  the  rule  laid  down,  that  the  most  approved  pre- 
cautions and  those  in  most  extensive  use  must  be  resorted  to,  and  that  the  engines 
must  be  so  used  and  guarded  as  not  ordinarily  to  emit  sparks,  in  such  a  manner 
as  to  endanger  the  structures  near  the  line  of  the  road.  The  care  and  caution 
must  be  in  proportion  to  the  peril.  If  a  railway  track  is  laid  so  near  the  plaintiff's 
barn  as  to  render  it  useless  for  that  purpose  he  may  recover  of  the  company 
damages  under  the  statute  for  the  injury.  W.  &  R.  Railw.  v.  Stauffer,  60  Penn. 
St.  374. 

10  Cook  v.  Champ.  Trans.  Co.,  1  Denio,  91,  99,  101.  One  is  not  precluded 
from  recovering  in  such  cases  by  reason  of  having  left  dry  grass  and  stubble  on 
his  land  adjoining  the  railway  to  which  the  fire  was  first  communicated.  Flynn  v. 
San  F.  &  St.  J.  Railw.,  40  Cal.  14.  But  in  Chicago  &  X.  W.  Railw.  v.  Simon- 
son,  54  111.  504,  where  the  fire  was  communicated  through  dry  grass  and  weeds 
suffered  to  accumulate  on  plaintiff's  land  next  the  railway,  it  was  held  he  could  not 
recover.  The  true  rule  in  such  cases  would  seem  to  be,  whether  or  not  a  careful 
man  would  have  removed  the  combustible  matter,  if  he  had  owned  both  the  land 
and  the  railway  ?  But  in  Kellogg  v.  Chi.  &  X.  W.  Railw..  :.'()  Wis.  223,  the  court 
seem  to  think  it  is  not  negligence  in  the  land-owner  to  suffer  such  combustible 
matter  to  accumulate  on  his  land  next  the  line  of  the  railway,  but  that  it  may  he 
so  for  the  company  to  sutler  the  same  on  their  own  land.  But  in  ().  &  ,M.  Railw. 
v.  Shanefelt,  47  111.  497,  it  was  held  not  to  amount  to  negligence,  per  se,  in 
the  railway.  And  in  Kesee  v.  Chi.  &  N.  W.  Railw.,  30  Iowa,  78,  where 
plaintiff's  hay  in  stack,  upon  his  own  land,  half  a  mile  from  the  line  of  the  rail- 
way, was  sit  mi  lire  by  a  spark  from  defendants'  engine,  it  was  held  he  could  not 
recover,  if  his  negligence  in  not  protecting  his  stack  contributed  to  the  loss.  The 
court  below  charged  the  jury,  that  if  the  plaintiff  stacked  his  hay  in  an  imprudent 
manner  he  took  the  risk  of  accidental  fires,  but  not  of  those  caused  by  the  defendants' 
carelessness.     We  might  have  regarded  this  the  better  rule  of  law  in  such  a  case. 

11  Field  v.  New  York  Central  Railw.,  32  N.  Y.  339. 

[*453] 


^78  LIABILITY    FOR    FIRES    BY   ENGINES.  PART  V. 

rag  caused  by  fires  communicated  by  coals  upon  the  track,  just 
after  the  passing  of  a  train,  that  it  was  competent*  to  show  that  the 
company's  Locomotives,  in  passing  over  the  road  on  former  occa- 
sions, dropped  coals  upon  the  track  at  or  near  the  same  place; 
and  also,  where  it  was  in  evidence  that  engines  properly  con- 
structed  and  in  good  order  will  not  drop  coals  upon  the  track,  that 
the  fad  of  defendants'  engines  doing  so,  is,  in  itself,  evidence  of 
negligence  sufficient  to  charge  the  defendants,  thus  imposing  upon 
them  the  burden  of  showing  that  they  were  not  culpable. 

8.  And  where  the  railway  companies  are  made  liable  for  all 
damage  in  this  way,  as  they  are  in  Massachusetts,  and  some  of  the 
other  states  by  statute,  if  one  whose  property  is  insured  suffer  loss 
in  this  way,  and  the  insurers  pay  him  his  entire  loss,  they  may 
recover  in  his  name  against  the  company.12  And  the  insurer  may 
recover  of  the  carrier  in  the  name  of  the  consignor,  on  whose 
behalf  the  policy  was  effected,  after  having  paid  the  amount  of  the 
loss  to  the  consignor.13 

',•.  By  statute  in  some  of  the  states,  as  we  have  seen,  railways 
are  made  liable  for  any  injury  to  "  buildings  or  other  property  of 
any  person  —  by  fire  communicated,"  by  their  locomotive  engines, 
and  it  is  sometimes  specially  provided  that  railways  shall  have  an 
insurable  interest  in  such  property.  But  it  has  been  held  that 
such  statutory  liability  only  extends  to  property  of  a  permanent 
nature,  and  upon  which  an  insurance  may  be  effected  ;  and  that 

'■"  Hart  v.  The  Western  Railw.,  13  Met.  99.  And  under  such  a  statute,  where 
the  sparks  from  the  engine  communicated  fire  to  a  shop,  and  the  wind  drove  the 
sparks  from  the  shop  sixty  feet  across  the  street,  and  set  fire  to  a  house,  it  was 
held  thai  this  second  fire  must  be  regarded  as  "communicated11  by  the  company's 
engine,  within  the  statute.     Id.     But  see  post,  pi.  1(J. 

In  a  contract  of  insurance  in  favor  of  a  railway  company,  upon  "cars  of  all 
descriptions" —  "  on  the  line  of  their  road  and  in  actual  use,"  where,  in  answer 
to  the  inquiry,  "  where  the  property  was  situated,"  the  company  reply,  "  from 
Boston  to  Fitchburg  and  branches  this  side  of  Fitchburg  ;  "  and  the  cars  of  the 
plaintiff's  company  loaded  with  ice,  standing  upon  a  track  belonging  to  the  pro- 
prietors  of  a  wharf  where  the  ice  was  unloaded,  but  communicating  with  the  track 
of  the  Fitchburg  road,  were  burned  by  a  fire  communicated  from  the  wharf,  it 
was  held  to  come  within  the  contract,  and  the  insurance  company  were  held 
liable.     Fitchburg  Railw.  v.  Charlestown  Mutual  Ins.  Co.,  7  Gray,  64. 

I;  .inside  v.  Steamboat  Company,  10  Rich.  (S.  C.)  113;  Garrison*?.  Mem- 
phis Ins.  Co.,  19  How.  (U.  S.)  312.  See  also  Hall  v.  Railw.  Companies,  13 
Wall.  367,  where  the  rule  laid  down  in  the  text  is  declared  to  be  the  settled  law, 
and  the  cases  are  cited  by  Mr.  Justice  Strong. 

[*454] 


§  125.  LIABILITY   FOR   FIRES   BY   ENGINES.  479 

for  injuries  of  this  kind  to  other  property  the  *  company  will  only 
be  responsible  for  negligence,  unskilfulness,  or  imprudence  in  run- 
ning and  conducting  their  engines.14 

10.  And  where  by  statute  railway  companies  are  made  liable 
for  all  damages  caused  to  property  so  near  the  road  as  to  be 
exposed  to  fire  from  their  engines,  it  was  held  to  extend  to  all 
property  subject  to  insurance,  and  to  include  growing  trees.15 

11.  Many  of  the  English  railway  companies  make  it  a  condition 
that  certain  goods  shall  be  insured  and  declared,  or  else  they  will 
not  be  responsible  for  any  loss  which  may  occur  in  regard  to  them. 
Such  a  condition  seems  reasonable,  and  it  is  so  treated  by  the 
English  courts.  But  to  be  any  protection  to  the  companies  it 
must  assume  that  the  insurers  are  bound  to  make  good  any  loss, 
as  well  for  the  benefit  of  the  assured  as  for  that  of  the  company, 
and  that  the  company  are  not  responsible  to  the  insurer  unless 
perhaps  for  neglect  of  duty  as  a  faithful  bailee.16  But  to  produce 
this  result,  the  policy  should  specify  that  the  insurance  is  for  the 
benefit  of  the  company  as  well  as  the  owners.  Strictly  speaking 
there  is  no  privity,  in  case  of  insurance  against  fire,  except  as  to 
the  immediate  parties  to  the  risk,  and  to  give  any  other  party  not 
named  in  the  policy  the  benefit  of  the  insurance  is  an  equitable 
extension,  and  one  which  the  courts  have  declined  to  make  some- 
times, as  between  mortgagor  and  mortgagee.17  But  where  the 
insurer  pays  the  insurance,  on  the  destruction  of  the  property,  it 
has  been  held  that  he  will  be  subrogated  to  any  claim  the  party 
insured  might  have  against  other  parties,18  unless  that  is  excluded 
by  the  terms  of  the  policy. 

14  Chapman  v.  Atlantic  &  St.  Lawrence  Railw.,  37  Maine,  92.  This  is  an 
action  for  the  loss  of  cedar  posts,  piled  upon  land  adjoining  the  railway,  by  the 
consent  of  the  owner  of  the  land,  and  set  on  fire  by  a  spark  from  the  defendants1 
engine,  and  they  were  held  not  liable  under  the  statute.  And  where  an  action  is 
brought  against  a  railway  company  for  damage  done  by  fire  from  its  engines  in 
states  where  it  is  made  responsible  for  .such  damage  in  all  cases,  it  will  be  no 
defence,  thai  in  estimating  damages  to  plaintiff's  grantor  damage  by  fire  from 
company's  engines  was  included.  Quaere,  whether  if  plaintiff  had  been  the  owner 
of  the  land,  at  the  time  damage  was  so  assessed,  it  would  have  afforded  any  de- 
fenceP     Pierce  v.  Worcester  &  Nashua  Railw.,  105  .Mass.  199;  post,  pi.  L3  &  a. 

16  Pratt  v.  Atlantic  &  St.  Lawrence  Railw.,  42  Maine,  579. 

1,1  Peci  v.  North  Staffordshire  Railw.,  Ellis,  B.  &  Ellis,  956. 

"  Columbia  Insurance  Co.  v.  Lawrence,  10  Pet.  (U.  S.)  507,512,  per  Story, 
J. ;   White  ».  Brown,  2  Cush.  412. 

13  Insurance  Co.  p.  Woodruff,  _  Dutcher,  .",11  :  ante,  pi.  8,  n.  12,  13. 

[*455] 


480  LIABILITY    FOR   FIRES   BY   ENGINES.  PART  V. 

1:2.  The  English  statute19  subjects  railway  companies  to  a 
penalty  for  each  day  they  use  an  engine  upon  their  roads  so  con- 
Btructed  as  not  to  consume  its  own  smoke.  But  it  has  been  held 
that  this  only  refers  to  the  construction  of  the  engine  when  under 
proper  management,  and  that  the  penalty  is  not  incurred  *by  an 
engine  emitting  smoke  instead  of  consuming  it  in  consequence  of 
bad  management  and  not  of  defective  construction.20 

13.  The  Massachusetts  statute,  making  railway  companies  re- 
sponsible for  loss  by  fire  communicated  by  their  engines,  and 
giving  them  an  insurable  interest  in  the  property  exposed  to  fire 
in  that  mode,  was  held  to  embrace  personal  property,  although  the 
company  had  no  knowledge  or  reasonable  cause  to  believe  that 
such  property  was  situated  where  it  might  be  so  injured.21  And 
in  the  trial  of  an  action  for  such  injury,  where  it  was  claimed  that 
no  burning  sparks  could  reach  far  enough  to  communicate  the  fire, 
it  is  competent  to  show  that  the  same  engine,  using  similar  fuel, 
emitted  sparks  reaching  a  greater  distance.21  And  where  it  was 
attempted  to  show  that  similar  engines  did  not  on  other  roads 
emit  sparks  reaching  that  distance,  it  is  competent  to  prove  that 
such  engines  on  other  roads  have  emitted  sparks  which  did  com- 
municate fire  at  that  distance.21  In  such  an  action,  where  the 
question  of  plaintiff's  want  of  due  care  depends  upon  the  consid- 
eration of  the  dryness  of  the  season,  the  strength  and  direction  of 
the  wind,  and  the  condition  of  the  plaintiff's  buildings,  it  is  proper 
to  submit  to  the  jury,  under  general  instructions,  whether  the 
plaintiff  exercised  due  care  or  not,  and  if  this  is  done  no  exception 
lies  to  a  refusal  to  instruct  the  jury  that  "  if  the  season  was  dry, 
and  the  wind  was  from  the  railway  and  strong,  and  the  plaintiff 
knew  those  facts  and  left  a  door  of  a  shed  open  towards  the  rail- 
way, and  combustible  materials  within  the  shed,  and  that  con- 
tributed to  the  fire,  it  is  evidence  of  negligence  on  his  part,  which 
should  preclude  his  recovery."21 

14.  A  question  of  considerable  practical  importance  has  been 
determined   by  the    Court   of  Exchequer    Chamber   in   England, 

19  8  &  9  Vict.  c.  20,  §114. 

"  Manchester,  Sheffield,  &  Lincolnshire  Railw.  v.  Wood,  29  Law  J.  29;  s.  c. 
1  L.  T.  iN.  S.)  ::i  ;  s.  c.  2  Bl.  &  El.  344. 

11  &08S  v.  Boston  A:  Worcester  Railw.,  6  Allen,  87.  The  company  should 
use  precautions  to  prevent  fire  escaping  from  their  engines  or  they  will  be  respon- 
sible for  consequences.     Bass  v.  Chicago,  Bur.  &  Quincy  Railw.  Co.,  28  111.  9. 

[*456] 


§  125.  LIABILITY   FOR    FIRES   BY   ENGINES.  481 

which  may  be  thought  sometimes  to  have  a  bearing  upon  the  con- 
duct of  railways.  The  proposition  there  maintained  is,  that  if  a 
person  bring  on  his  own  land  any  thing,  which,  if  it  escape,  may 
prove  injurious  to  his  neighbor's  property,  such  as  a  large  body  of 
water,  he  is  liable  to  make  compensation  for  any  injury  that  may 

*  accrue  from  its  escape  out  of  his  land  ;  and  it  is  no  excuse,  if  it 
do  escape  and  cause  damage  to  his  neighbor,  that  the  injury  was 
caused  without  any  default  or  negligence  on  his  part.22  And  the 
question  has  been  recently  presented  as  applied  to  railways  in  an 
English  case,23  where  it  was  held,  the  defendant  having  obtained 
its  charter  in  1832,  to  enable  it  to  remove  minerals  upon 'wagons 
and  other  carriages  upon  its  railway  or  tramway ;  but  having  no 
parliamentary  power  to  use  steam  locomotive  engines,  but  had  as- 
sumed to  do  so,  in  the  transportation  of  passengers  along  its  line 
under  permission  from  the  Board  of  Trade,  by  reason  of  which 
the  plaintiff's  buildings  along  the  line  had  been  set  on  fire  by 
sparks  emitted  from  the  engines,  without  proof  of  negligence 
on  the  part  of  the  company,  that  it  was  responsible  at  common 
law  without  regard  to  the  question  of  negligence,  inasmuch  as  it 
had  no  legal  right  to  use  those  engines  in  that  place. 

*  15.  The  carefully  considered  judgment  of  the  full  court  of 
Exchequer    Chamber    by    Blackburn,  J.,    contains    many    points 

*  bearing  upon  questions  which  are  liable  to  arise  in  the  course  of 
the  construction  and  operation  of  railways,  and  we  should  have 
inserted  it  here  but  for  want  of  space.22*  The  opinion  points 
out  very  clearly  for  what  matters  railway  companies  *  and  others 
are  or  are  not  to  be  held  responsible,  if  there  is  no  actual  negli- 
gence on  their  part. 

*  16.  A  question  of  considerable  practical  importance  has  been 
somewhat  discussed,  in  regard  to  the  extent  of  the  responsibility 

*  of  railway  companies,  or  others,  for  fires  communicated  by  the 
accidental  extension  of  other  fires,  for  which  the  party,  through 
negligence  or  otherwise,  is  confessedly  responsible.  Upon  prin- 
ciple, it  would  seem,  that  one  who  is  the  unintentional,  but  care- 
less, cause  of  setting  a  fire,  should  not  be  held  responsible  for 
damage  beyond  the  immediate,  direct,  and  natural  consequences  of 
the  original  fire.    There  are  numerous  disastrous  consequences  re- 

, 22  Fletcher  v.  Rylands,  Law  Rep.  1  Exch.  265 ;  12  Jur.   (N.  S.)  603 ;  s.  c. 
11  id.  714,  affirmed  in  House  of  Lords,  3  Ho.  Lds.  338. 
23  Jones  v.  Festiniog  Railw.,  Law  Rep.  3  Q.  B.  733. 

31  [M57-463] 


|v>  LIABILITY   FOR   FIRES   BY    ENGINES.  PART  V. 

suiting  Bometimes  from  setting  fires,  but  which  are  so  rare  as  not 
to  be  fairly  reckoned  in  the  category  of  natural  or  ordinary  results, 
by  way  of  cause  and  effect.  A  fireman  may  be  fatally  injured  and 
a  family  beggared,  or  a  horse  may  be  frightened,  and  the  fathers 
of  more  than  ono  dependent  family  killed,  or  crippled  for  life,  in 
consequence.  But  no  actions  have  ever  been  instituted  for  any 
such  remote  damages.  And  although  some  of  the  cases  bear  a 
considerably  close  analogy  to  these  in  principle,  it  must,  we  think, 
bo  treated  as  the  prevailing  rule  of  law  that  such  remote  and  con- 
sequential damages  will  not  form  the  ground  of  an  action  in  the 
courts.  And  in  Ryan  v.  New  York  Central  Railway,24  it  was  held 
the  defendants  were  not  responsible  for  the  destruction  of  the 
plaintiff's  house,  distant  one  hundred  and  thirty  feet  from  their 
shed,  which  had  been  set  on  fire  through  their  own  negligent  con- 
duct in  regard  to  one  of  their  engines,  or  by  reason  of  some  defect 
in  the  engine,  from  which  the  fire  had  communicated  to  the 
plaintiffs  house.     This  seems  a  misapplication  of  the  rule. 

17.  The  question  discussed  to  some  extent  in  the  next  pre- 
ceding paragraph  is  constantly  attracting  more  and  more  attention 
from  the  courts  in  different  classes  of  cases.  The  necessity  of  the 
defendant's  act  being  the  proximate  cause  of  the  damage  in  order 
to  hold  him  responsible  for  it  in  an  action  at  law,  is  by  no  means 
new.  It  is  the  real  distinction  between  privity  and  want  of 
privity  in  matters  of  contract.  And  the  same  principle  holds  in 
regard  to  torts,  whether  voluntary  or  negligent.  The  defendant 
can  only  be  held  responsible  for  the  immediate  consequences  of  his 
act  or  neglect,  and  not  for  any  remote  and  incidental  result,  how- 
ever certain  it  may  be  that  the  damage  really  did  result  from  such 
act  or  neglect.  The  question  is  very  ably  discussed  by  Hunt,  J., 
in  the  case  of  Ryan  v.  New  York  Central  Railway  ; 24  and  the 
case  of  the  Pennsylvania  Railway  v.  Kerr25  adopts  the  same  view, 
and  discusses  the  cases  with  great  clearness  and  force,  in  an 
opinion  of  considerable  length  by  Thompson,  C.  J.  The  learned 
judge  refers  to  several  other  American  cases 26  bearing  in  the  same 
direction.  The  English  cases,  bearing  upon  the  question,  do  not 
seem  to  have  considered  the  distinction  between  proximate  and 

11  35  X.  Y.  210.    But  see  Trask  v.  Hartford  &  New  H.  Railw.,  2  Allen,  331. 
2i  27  Legal  Intel.  Reports,  228;  s.  c.  62  Penn.  St.  353. 

Harrison  v.  Berkley,  1  Strobbh.  548;  Lowrie,  J.,  in  Morrison  v.  Davis, '8 
Harris,  Penn.  St.  171. 


§  125.  LIABILITY   FOR   FIRES   BY   ENGINES.  483 

remote  causes,  and  some  of  them  seem  to  have  gone  upon  grounds 
somewhat  in  conflict  with  the  opinion  here  expressed.27  But  we 
do  not  apprehend  the  English  courts  can  finally  extend  the  rule  of 
damages,  in  such  cases,  beyond  the  immediate  and  direct  conse- 

17  Smith  v.  London  &  South  Western  Railw.,  Law  Rep.  5  C.  P.  98 ;  s.  c.  18  W. 
R.  343  ;  Exch.  Ch.,  19  W.  R.  230.     But  see  Burrows  v.  The  March  Gas  &  Coke 
Co.,  L.  R.   5  Exch.  67;  7  id.  96,  where  the  question  of  excusing  the  party  in 
fault  for  secondary  consequences  of  his  misconduct  is  somewhat  restricted.    And 
in  Smith  v.  London  &  S.  W.  Railway,  L.  R.  6  C.  P.  14,  in  Exchequer  Chamber,  the 
majority  of  the  English  judges  seem  to  think  one  is  responsible  for  the  remotest 
direct  and  immediate  consequences  of  his  negligence,  whether  he  could  have  fore- 
seen them  or  not,  and  this  seems  reasonable.     The  Mass.  Supreme  Judicial  Court, 
in  a  late  case,  adopt  much  the  same  rule.     Perley  v.  Eastern  Railw.,  98  Mass.  414. 
But  see  Barron  v.  Eldredge,  100  Mass.  455.     And  Hart  v.  The  Western  Railw., 
ante,  n.  12,  is  precisely  the  same.    It  has  always  seemed  to  us  a  misapplication  of 
the  rule,  where  courts  have  attempted  to  excuse  the  party,  carelessly  respon- 
sible for  the  consequences  of  setting  a  fire,  for  all  the  damage  caused  by  the  fire 
except  for  the  very  first  object  burned,  on  the   ground  that  all  else  was  but  a 
secondary  consequence  of  the  fire,  and  therefore  too  remote  to  form  the  ground 
of  an  action.     We  might  just  as  well  argue  that  all  the  consequences  of  miscon- 
duct, except  the  very  first,  were  to  be  borne  by  the  sufferer  without  redress. 
As  where  one  carelessly  lets  out  water  which  floods  a  city,  and  destroys  millions 
of  property,  it  might  be  said  the  party  in  fault  was  only  responsible  for  the  loss 
of  the  water.     The  truth  is  that  all  the  buildings  or  property  burned  by  a  fire, 
are  destroyed  just  as  certainly  and  directly,  by  the  negligence  of  the  party  set- 
ting the  first  fire,  as  the  very  first  building.     And  any  attempt  to  define  one  as 
the  proximate  result,  and  the  others  as  merely  the  remote  consequences  jaf  the 
fire,  is  but  a  misconception  and  misapplication  of  the  rule  of  proximate  and  re- 
mote causes.     But  see  Kesee  v.  Ch.  &  N.  W.  Railw.,  30  Iowa,  78.     Since  writ- 
ing the  foregoing  we  have  received  4  Chicago  Legal  News,  326,  containing  the 
able  and  learned  opinion  of  Lawrence,  C.  J.,  in  Feut  v.  T.  P.  &  W.  Railw., 
Supreme  Court  of  Illinois,  unreported ;    s.  c.  1  Redf.  Am.  Railw.  Cases,  350,  in 
which  the  learned  judge  reviews  the  cases  very  extensively  upon  this  question, 
and  comes  very  decidedly  to  the  opinion  already  expressed  in  this  note,  which 
from  its  innate  reasonableness  we  feel  assured  must  prevail.     Safford  v.  Boston 
&  .Maine  Railw.,  103  Mass.  583,  adopts  the  same  view.     In  a  late  English  ease, 
Lord  Bailiffs,  &c.  v.  The  Trinity  House,  Law  Rep.  5  Exch.  204 ;  7  id.  247, 
where  the  defendants1  vessel,  owing  to  the  negligence  of  their  servants,  struck 
on  a  sand-bank,  and  becoming  from  that  cause  unmanageable,  was  driven  by 
wind  and  tide  upon  the  plaintiff's  sea  wall  and  damaged  it,  it  was  held,  both  in 
the  Court  of  Exchequer  and  in  the  Exchequer  Chamber,  that  the  defendants 
were  responsible.     But  where  the  plaintiff's  store  was  burned  by  fire  communi- 
cated from  defendant's  engine,  not  without  fault,  and  a  large  sum  of  money  in 
the  store  consumed;  but  which  the  plaintiff  might  have  saved  without  danger, 
but  did  not  think  of  it  in  time,  being  occupied  in  saving  his  horses,  it  was  held  he 
could  not  recover  for  the  money.    Toledo  P.  &  W.  Railw.  v.  Finder,  53  111.  117. 

[*463] 


.}>>(  LIABILITY    FOR    FIRES    BY    ENGINES.  PART  V. 

quencea  of  the  defendant's  act  or  neglect,  whatever  that  may  be. 
The  case  Lasl  cited  does  not  seem  to  fairly  raise  the  question  of 
proximate  and  remote  consequences  of  tortious  acts.  The  real 
gravamen  of  the  neglect  of  duty  on  the  part  of  the  defendant 
seems  to  have  been  leaving  mowed  grass  and  other  "  rummage," 
as  it  is  here  called,  on  the  sides  of  the  track  in  small  heaps  for  two 
w.cks  in  very  dry  weather,  thus  exposed  to  be  ignited  by  the 
Bparks  from  the  passing  engines.  The  company  had  the  right  to 
use  the  engines,  and  there  was  no  evidence  that  the  company  did  not 
use  every  precaution  that  science  had  suggested  to  prevent  injury 
so  far  as  the  use  of  the  engines  was  concerned.  The  cause  of  the 
fire  was  the  exposed  state  of  such  combustible  matter ;  and  when 
the  fire  occurred  it  was  not  a  case  where  the  burning  of  the  cot- 
tage two  hundred  yards  distant  could  be  said  to  be  only  a  remote 
consequence  of  the  negligence  ;  certainly  not  if  remote  is  used  in 
the  sense  of  secondary.  If  that  were  to  be  so  held,  no  railway 
would  ever  be  responsible  for  the  consequences  of  a  fire  first 
kindled  on  its  own  land  ;  for  all  fires  springing  from  it  would  be 
too  remote  consequences  of  the  first  act  to  form  the  basis  of  an 
action. 

[*463] 


126. 


INJURIES   TO    DOMESTIC    ANIMALS. 


485 


*CHAPTER     XVIII. 


INJURIES    TO    DOMESTIC    ANIMALS. 


1.  Company  not  liable  unless  bound  to  keep 

the  animals  off  the  track. 

2.  .Some  cases  go  even  further,  in  favor  of 

the  company. 

3.  Not  liable  where  the  animals  were  wrong- 

fully abroad. 

4.  Not  liable  for  injury  to  animals,  on  land 

ivhere  company  not  bound  to  fence. 

5.  Where  company  bound  to  fence  are  prima 

facie  liable  for  injury  to  cattle. 

6.  But  if  owner   is   in  faidt,  company  not 

liable. 

7.  In  such   case   company   only   liable  for 

gross  neglect  or  wilful  injury. 

8.  Owner  cannot  recover,  ifhesuffer  his  cat- 

tle to  go  at  large  near  a  railway. 

9.  Company  not  liable  in  such  case,  unless 

they  might  hare  avoided  the  injury. 

10.  Where   company   are   required   to   keep 

gates  closed,  are  liable  to  any  party  in- 
jured by  omission. 

11.  Opinion  of  Gibson,  Justice,  on  this  sub- 

ject. 

12.  17.  Not   liable  for  consequences    of  the 

proper  use  of  their  engines. 

13.  Questions  of  negligence  ordinarily  to  be 

determined  by  jury. 

14.  But  this  is  true  only  where  the  testimony 

leaves  the  question  doubtful. 


•3) 


21 


15.  Actions  maybe  maintained  sometimes,  for 
remote  consequences  of  negligence. 

16-18.  Especially  where  a  statutory  duty  is 
neglected  by  company. 

19.   The  question  of  negligence  is  one  for  the 

jury- 
One  ivho  suffers  an  animal  to  go  at  large 

can  oidy  recover  for  gross  neglect. 
Testimony  of  experts   receivable   as   to 

management  of  engines. 

22.  One  who  suffers  cattle  to  go  at  large  must 

take  the  risk. 

23.  The  company  owe  a  primary  duty  to  pas- 

sengers, Sfc. 

24.  In  Maryland  company  liable  unless  for 

unavoidable  accident. 

25.  In  Indiana  common-law  rule  prevails. 

26.  In  Missouri,  modified  by  statute. 

27.  In  California  cattle  may  lawfully  be  suf- 

fered to  go  at  large. 

28.  29.  Abstract  of  late  cases  in  Illinois. 

30.  The  weight  of  evidence  and  of  presump- 

tion. 

31.  Company  not  liable  except  for  negligence. 

32.  Company  must  use  all  statutory  and  other 

precautions. 

33.  Not  competent  to  prove  negligence  of  the 

same  kind  on  other  occasions. 

34.  Rule  of  damages. 


§  126.  1.  The  decisions  upon  the  subject  of  injuries  to  domestic 
animals  by  railways  are  very  numerous,  but  may  be  reduced  to 
comparatively  few  principles.  Where  the  owner  of  the  animals  is 
unable  to  show  that  as  against  the  railway  they  were  properly 
upon  the  track,  or,  in  other  words,  that  it  was  through  the  fault  of 
the  company  that  they  were  enabled  to  come  upon  the  road,  the 
company  are  not  in  general  liable,  unless,  after  they  discovered 
the  animals,  they  might,  by  the  exercise  of  proper  care  and  pru- 
dence, have  prevented  the  injury.     *The  fact  of  killing  an  animal 

[*464] 


486  IN.1URIES   TO    DOMESTIC    ANIMALS.  PART  V. 

of  value  by  the  company's  engines,  is  not  prima  facie  evidence  of 
negligence  on  their  part.1  A  distinction  is  here  taken  hy  the  court 
between  injuries  to  permanent  property  situated  along  the  line  of 
the  railway,  as  injury  to  buildings  by  fires  communicated  by  the 
company's  engines,  and  damage  to  cattle  which  are  constantly 
changing  place,  there  being  more  evidence  of  fault  on  the  part  of 
the  company  from  the  mere  occurrence  of  the  injury  in  the  former 
than  in  the  latter  case.2 

•J.  Most  of  the  better  considered  cases  certainly  adopt  this  view 
of  the  subject,  and  some  perhaps  go  even  further  in  favor  of 
exempting  the  company  from  liability,  where  they  were  not  origi- 
nally in  fault,  and  the  animals  were  exposed  to  the  injury  through 
the  fault  of  the  owner,  mediately  or  immediately. 

3.  For  instance,  if  the  animal  escape  into  the  highway,  and 
thus  get  upon  the  track  of  the  railway  where  it  intersects  with 
the  highway,  and  is  killed,  the  company  are  not  liable.3  And  if 
the  animals  are  trespassing  upon  a  field,  and  stray  from  the  field, 
upon  the  track  of  the  railway,  through  defect  of  fences,  which  the 
company  are  bound  to  maintain,  as  against  the  owner  of  the  field, 
and  are  killed,  the  company  are  not  liable,  either  at  common  law 
or  under  the  English  statute,4  or  upon  the  ground  that  the 
defendant  exercised  a  dangerous  trade.  The  obligation  to  make 
and  maintain  fences,  both  at  common  law  and  under  the  statute, 

1  Scott  v.  W.  &  R.  Railw.,  4  Jones  Law,  432.  To  render  the  company 
prima  facie  responsible  for  damage  done  to  cattle,  it  must  appear  that  they  came 
upon  the  track  through  defect  of  fences  or  cattle-guards,  which  as  between  the 
owner  and  the  company  it  was  its  duty  to  maintain.  Cecil  v.  P.  Railw.,  47  Mo. 
246  ;  Bellf.  Railw.  v.  Suman,  297  Ind.  40 ;  Toledo  Railw.  v.  Wickery,  44  111.  76. 
A  railway  is  bound  to  fence  its  track  along  the  tow-path  of  a  canal,  abandoned  as 
a  thoroughfare.     W.  W.  V.  Railw.  v.  Quick,  30  Ind.  384. 

See  QOte  1,  and  also  Ind.  &  Cincin.  Railw.  v.  Caldwell,  9  Ind.  397. 
;  Towns  v.  Cheshire  Railw.,  1  Foster,  363;  Sharrod  v.  London  &  N.  W. 
Railw.,  I  Exch.  580.  Halloran  v.  New  Y.  &  Harlem  Railw.,  2  E.  D.  Smith,  257. 
in  .Man  land  it  was  held  that  a  statute  for  the  protection  of  animals  and  stock  did 
not  include  negro  slaves.  Scaggs  v.  Bait.  &  Wash.  Railw.,  10  Md.  268.  But 
even  where  the  cattle  are  wrongfully  at  large,  and  thus  come  upon  the  track, 
yet  the  company  have  often  been  held  responsible  for  killing  them  through 
neglect  or  mismanagement  short  of  positive  or  intentional  wrong.  M.,  &c.  Railw. 
v.  Blakeney,  13  Miss.  218;  Same  v.  Orr,  id.  279;  Raiford  v.  M.  Central  Railw., 
id.  2 

4  8  &  9  Vict.  c.  20,  §  68. 
[*465] 


§  126.  INJURIES   TO    DOMESTIC    ANIMALS.  487 

applies  only  as  against  the  owners  or  occupiers  of  the  adjoining 
close.5 

*  4.  So  where  the  statute  requires  railways  to  fence  their  road, 
where  the  same  passes  through  "  enclosed  or  improved  lands,"  if 
injury  happen  to  another's  cattle  through  want  of  fences,  upon 
common  or  unenclosed  land,  it  is  not  legally  imputable  to  the 
negligence  of  the  company.6 

5.  But  if  the  railway  are  bound  to  maintain  fences,  as  against 
the  owner  of  the  cattle,  and  they  come  upon  the  road  through 
defect  of  such  fences,  and  are  injured,  the  company  are,  in  general, 
liable  without  further  proof  of  negligence.7 

5  Ricketts  v.  The  East  and  West  India  Docks  and  Birra.  J.  Railw.,  12  C.  B. 
160;  s.  c.  12  Eng.  L.  &  Eq.  520.  See  also  Dawson  v.  Midland  Railw.,  21  W. 
R.  56.  The  same  point  is  ruled  in  the  following  cases.  Jackson  v.  Rut.  &  Bur. 
Railw.,  25  Vt.  150.  See  also  cases  referred  to  in  §§  127,  128.  And  it  was  held, 
Man.  Sh.  &  Lincolnshire  Railw.  v.  Wallis,  14  C.B.  243;  s.  c.  25  Eng.  L.  &  Eq. 
373,  that  a  railway  are  not  bound  to  fence  against  cattle  straying  upon  a  high- 
way running  along  the  railway,  and  that  they  are  not  liable  for  an  injury  sus- 
tained by  cattle  in  getting  from  such  highway  upon  the  railway,  through  a  defect  of 
the  fences  maintained  by  the  company ;  although  the  cattle  strayed  upon  the  high- 
way without  any  fault  of  the  owner.  Brooks  v.  N.  Y.  &  Erie  Railw.,  13  Barb. 
594.  But  in  the  Midland  Railw.  v.  Daykin,  17  C.  B.  126  ;  s.  c.  33  Eng.  L.  & 
Eq.  193,  it  was  held,  that  where  a  colt  strayed  from  a  field,  upon  a  public  road, 
abutting  upon  which  was  a  yard  not  fenced  from  a  railway,  the  gate  of  which 
was,  through  the  neglect  of  the  company's  servants,  left  open,  and,  while  the  colt 
was  being  driven  back  to  the  field  by  the  servants  of  the  owner,  it  escaped  into 
the  yard,  and  thence  upon  the  railway,  where  it  was  killed  by  a  parsing  train, 
the  company  were  liable.  Jcrvis,  C.  J.,  says:  "I  can  see  no  room  to  doubt 
that  that  was  a  lawful  use  of  the  highway."  But  in  Ellis  v.  London  &  South- 
western Railw.,  2  H.  &  N.  424,  where  a  railway  company  constructed  their  road 
across  a  public  footway,  in  such  a  manner  that  no  security  against  injury  to 
passers  on  the  way  was  afforded  within  the  provisions  of  the  English  statute,  8 
&  9  Vict.  c.  20,  §§  46,  61,  68,  by  means  of  a  bridge  or  stile,  but  the  company 
erected  high  gates  which  obstructed  the  footway  and  gave  the  key  to  plaintiif's 
servant,  which  had  been  lost  and  the  gates  left  open,  without  notice  to  the  rail- 
way company,  whereby  the  plaintiff's  colts  escaped  from  his  lands  adjoining,  and 
came  upon  the  railway  and  were  killed  by  a  passing  train,  the  jury  having  found 
that  the  plaintiff,  by  his  own  negligence  and  that  of  his  servants  had  contributed 
to  the  accident,  it  was  held  he  could  not  recover,  notwithstanding  the  omission 
of  duty  by  the  company. 

6  Perkins  v.  Eastern  Railw.  and  the  Boston  &  M.  Railw.,  29  Maine,  307. 
And  if  by  the  common  usage  cattle  have  the  right  to  run  upon  unenclosed  land, 
the  owner  incurs  the  risk  of  all  accidents.  Knight  v.  Abert,  6  Penn.  St.  172; 
Phil.  &  Germ.  Railw.  v.  Wilt,  4  Whart.  143. 

7  Suydam  v.  Moore,  8  Barb.  358;  Waldron  v.  Rensselaer  &  Sar.  Railw.,  8 

L*406] 


488  INJURIES   TO   DOMESTIC    ANIMALS.  PART  V. 

6.  But  where  the  statute  imposes  the  duty  of  building  fence 
upon  the  railway,  they  may  lawfully  stipulate  with  the  land-owners 
to  maintain  it,  and  if  such  land-owner  suffer  his  cattle  to  be  where 
they  may  come  upon  the  railway  without  building  the  fence,  he 
•cannol  recover  of  the  company.8  So,  too,  if  the  plaintiff  leave 
down  the  bars  at  a  cattle  crossing,  whereby  his  cattle  go  upon  the 
railway  and  are  killed,  he  cannot  recover.9 

7.  And  where  the  cattle  go  upon  a  railway  through  defect  of 
llncis.  which  the  owner  is  bound  to  maintain,  and  suffer  damage, 
the  owner  has  no  claim  upon  the  company,  unless,  perhaps,  for 
what  lias  sometimes  been  denominated  gross  negligence,  or  wilful 
injury,10  for  in  such  cases  the  cattle  are  regarded  as  trespassers,10 
and  the  owner  the  cause  of  the  injury  sustained,  unless  the  railway 
might  have  prevented  it.     But   where  there  was  no  reasonable 

Barb.  390;  Horn  v.  Atlantic  &  St.  Lawrence  Railw.,  35  N.  H.  169;  s.  c.  36  id. 
•440;  Smith  r.  Eastern  Railw.,  35 'N.  H.  356.  But  where  the  cattle  come  upon 
the  railway,  at  a  point  not  proper  to  be  fenced,  as  at  the  intersection  of  a  high- 
way, or  at  a  mill  yard,  the  company  are  not  liable  for  injury  to  them,  unless  the 
plaintiff  prove  some  fault  on  the  part  of  the  company's  servants,  besides  the  want 
offences.  Indianapolis  &  C.  R.  v.  Kinney,  8  Ind.  402;  Lafayette  &  Ind.  Railw. 
r.  Shriner,  6  Ind.  141.  But  the  owner  of  cattle  is  not  precluded  from  recovering 
for  any  damage  inflicted  upon  his  cattle  by  the  company,  whose  duty  it  was  to 
fence  the  line,  where  it  occurred,  because  he  turned  his  cattle  upon  his  land  be- 
fore the  fence  was  built.     McCoy  v.  Cal.  &  Pacific  Railw.,  40  Cal.  532. 

8  Tower  v.  Prov.  &  Wor.  Railw.,  2  Rhode  Island,  404,  411 ;  Clark  v.  Sy.  & 
Utka  Railw.,  11  Barb.  112;  C.  H.  &  D.  Railw.  v.  Waterson,  4  Ohio  (N.  S.), 
424.  So,  also,  where  the  duty  of  maintaining  the  fences  along  the  railway  is 
upon  the  land-owner,  and  it  is  burned  down  by  fire,  communicated  by  the  com- 
pany's engines,  and  he  suffers  his  fields  to  remain  unfenced,  whereby  his  cattle  go 
upon  the  track,  and  are  killed,  he  cannot  recover.  If  the  company  are  in  fault, 
and  liable  to  damages  in  regard  to  the  fire,  this  does  not  oblige  them  to  rebuild 
the  fence,  nor  will  it  justify  the  plaintiff  in  suffering  his  fields  to  remain  unfenced 
except  al  his  own  peril.     Terry  v.  New  York  Central  Railw.,  22  Barb.  574. 

9  Waldron  v.  Portland,  S.  &  P.  Railw.,  35  Maine,  422. 

10  Tonawanda  Railw.  v.  Munger,  5  Denio,  255;  s.  c.  4  Comst.  349;  Clark  v. 
Syracuse  &  [Jtica  Railw.,  11  Barb.  112;  Williams  v.  Mich.  Central  Railw.,  2 
Mich.  259.  In  this  case  the  horses  were  wrongfully  upon  the  railway,  and  the 
court  say  "  they  (the  company)  cannot  be  held  liable  for  any  accidental  injury 
which  may  have  occurred,  unless  the  lawful  right  of  running  the  train  was  exer- 

d  without  a  proper  degree  of  care  and  precaution,  or  in  an  unreasonable' or 
unlawful  manner."  See  also  Garris  v.  Portsmouth  &  Roanoke  Railw.,  2  Ired. 
824;  ('.  II.  &  I).  Railw.  v.  Waterson,  4  Ohio  (N.  S.),  424;  C.  C.  &  C.  Railw. 
v.  Elliott,  4  Ohio  (N.  S.),  474;  New  Albany,  &c.  Railw.  v.  McNamara,  11  Ind. 
543. 

[*467] 


§  126.  INJURIES   TO    DOMESTIC   ANIMALS.  489 

ground  to  suppose  that  the  portion  of  fence  which  it  was  the 
duty  of  the  company  to  build  would  have  protected  the  animals, 
and  the  owner  was  shown  to  have  been  guilty  of  negligence  in  not 
taking  care  of  them,  it  was  held  there  could  be  no  recovery, 
since  his  negligence  was  the  direct  and  proximate  cause  of  the 
injury.11 

8.  And  it  was  held  to  be  gross  negligence  for  the  owner  of  cattle 
to  suffer  them  to  go  at  large,  in  the  vicinity  of  a  railway,  whether 
the  same  was  fenced  or  not.12  And  it  will  impose  no  additional 
*  obligation  upon  a  railway  company,  in  regard  to  cattle  suffered  to 
go  at  large  in  the  public  highways,  by  order  of  the  county  com- 
missioners having  charge  of  the  same,  if  the  company  are  guilty  of 
no  negligence  ;  in  such  cases,  the  owners  of  cattle  killed  at  the 

11  Joliet  &  Northern  Ind.  Railw.  v.  Jones,  20  Illinois,  221.  And  even  where 
cattle  came  upon  a  railway  track  without  tbe  fault  of  the  owner,  but  had  escaped 
from  their  enclosure  and  wandered  upon  the  track,  and  were  there  damaged 
by  the  alleged  carelessness  of  the  engineer  in  not  slackening  the  speed  of 
the  train,  the  company  were  held  not  responsible.  Price  v.  N.  J.  Railw.,  2 
Vroom,  229.  But  where  there  is  evidence  of  recklessness  or  gross  negligence, 
in  such  cases  the  company  will  be  held  responsible.  This,  however,  is  not  to  be 
carried  to  such  an  extent  as  to  embarrass  the  engineer.  If  he  act  in  good  faith 
and  according  to  his  best  wisdom  and  discretion,  the  company  cannot  be  held 
liable  for  any  injury.  The  question  is  well  illustrated  in  Card  vt  N.  Y.  &  H. 
Railw.,  50  Barb.  39.  See  also  Eames  v.  Salem  &  Lowell  Railw.,  98  Mass.  560; 
Ch.  &  Alton  Railw.  v.  Utley,  38  111.  410.  But  it  seems  to  be  most  unquestiona- 
ble, that  even  where  the  owner  of  cattle  is  guilty  of  negligence  or  even  positive 
foolhardiness  and  wrong  in  allowing  his  cattle  to  come  upon  a  railway  track, 
this  will  not  excuse  the  company  for  injuring  them  needlessly,  or  even  care- 
lessly. They  are  still  bound  to  exercise  ordinary  care  and  prudence  in  avoiding 
inflicting  any  injury  upon  them  until  they  can  be  removed  from  the  road. 
Needham  v.  S.  F.  &  S.  J. -Railw.,  37  Cal.  409.  See  also  111.  Central  Railw.  v. 
Middlesworth,  46  111.  494. 

'*  Marsh  v.  N.  Y.  &  Erie  Railw.,  14  Barb.  364;  Talmadge  v.  Rensselaer  & 
Saratoga  Railw.,  13  Barb.  493;  Louisville  &  Frankfort  Railw.  v.  Milton,  14  B. 
Monroe,  75.  This  is  where  the  plaintiff  below  suffered  the  company  to  build  a 
railway  through  his  field  without  stipulating  that  they  should  fence  the  track,  and 
his  cattle  running  upon  the  track  while  depasturing  in  the  field  were  killed,  and 
the  court  held  the  company  were  not  liable,  "  unless  the  injury  could  have  been 
avoided  with  reasonable  care."  But  in  Housatonic  Railw.  v.  Waterbury,  23 
Conn.  101,  it  was  held  that  in  such  case  the  company  hold  their  easement  subject 
to  the  land-owner's  right  to  cross  and  recross,  to  and  from  the  different  sections 
of  his  farm,  provided  the  right  is  reasonably  exercised,  and  that  the  land-owner 
is  not  chargeable  with  negligence  in  letting  his  cattle  run  on  his  land  unfeneed, 
unless  he  knew  they  were  accustomed  to  keep  near  the  track,  thus  imposing  a 
duty  of  watchfulness  on  both  parties. 

[*4G8] 


490  INJURIES   TO    DOMESTIC   ANIMALS.  PART  V. 

road-crossings,    by    trains    of    the   company,   cannot   recover   of 
them.1" 

9.  It  has  been  held  not  to  be  sufficient  in  such  cases  to  charge 
the  company,  to  show  that  they  were  running  at  an  unreasonable 
rate  of  speed,  or  without  proper  care  in  other  respects.14  The 
only  question  in  such  case  is,  we  apprehend,  whether  the  company, 
after  discovering  the  peril  of  the  animals,  might  have  so  conducted  as 
to  have  prevented  the  injury.14  The  same  rule  obtains,  which  does 
in  actions  for  personal  injuries,  where  there  is  fault  in  both  parties. 
This  subject  is  extensively  discussed  in  Vicksburg  and  Jack- 
son Railway  v.  Patton,15  and  the  doctrine  enunciated,  that  the 
owner  of  domestic  animals  not  of  a  dangerous  character,  may 
lawfully  suffer  them  to  depasture  upon  the  unenclosed  commons, 
and  if  they  wander  upon  the  premises  of  others  not  enclosed,  the 
owner  of  the  animals  is  not  liable  for  any  damage  in  consequence. 
But  a  railway,  crossing  such  common,  has  the  same  right  to  its 
unobstructed  use  as  the  owner  of  cattle,  and  they  may  lawfully 
run  their  cars  at  all  times,  and  at  all  lawful  rates  of  speed ;  but  if 
their  own  track  be  unenclosed  and  cattle  liable  to  wander  upon  it, 
the  company  should  have  proper  regard  to  so  running  their  trains 
as  not  to  injure  them.  And  if  cattle  are  injured  through  any 
default  of  the  company,  it  is  liable.  It  is  the  duty  of  the  com- 
pany *  to  keep  their  engines  in  good  repair,  and  to  have  a  sufficient 
number  of  servants  to  manage  their  trains  with  safety  ;  and  if 
through  any  default  in  any  of  these  duties  the  cattle  of  another 
are  injured,  it  will  be  liable.  It  was  held  in  this  case,  contrary  to 
the  general  course  of  practice,  that  it  may  be  proved  that  the 
general  character  of  the  engineer  in  charge  of  the  train  was  that 
of  a  reckless  and  untrustworthy  agent.  And  it  is  here  said  that 
the  company  are  liable  to  exemplary  damages  for  such  an  injury 
occurring  through  the  gross  negligence  or  wanton  misconduct  of 
its  agents ;  both  of  which  propositions  seem  not  entirely  reconcil- 
able with  the  general  course  of  decision. 

10.  And  it  has  been  held  where  the  statute,  in  general  terms, 

13  Mich.  &  Southern  &  Northern  Ind.  Railw.  v.  Fisher,  27  Ind.  96. 

14  Vandergrift  v.  Rediker,  2  N.  J.  (Zab.)  185;  Clark  v.  Sy.  &  Utica  Railw., 
11  Barb.  112  ;  Williams  v.  Mich.  Central  Railw.,  2  Mich.  259  ;  Lafayette  &  Ind. 
Railw.  v.  Shriner,  6  Porter  (Ind.),  141.  Here  it  is  held  the  company  are  liable 
for  gross  negligence,  even  where  the  cattle  are  wrongfully  upon  the  road. 

13  31  Miss.  166;  Gorman  v.  Pacific  Railw.,  26  Mo.  441. 
[*469] 


§  126.  INJURIES   TO   DOMESTIC    ANIMALS.  491 

requires  railways  to  keep  gates  at  road-crossings  constantly  closed, 
that  one  whose  horses  leaped  from  his  field  into  the  highway, 
and  then  strayed  upon  the  railway,  by  reason  of  the  gates  not  be- 
ing kept  constantly  closed,  and  were  killed,  might  recover  of  the 
company.16  In  such  case  it  was  held,  that  as  to  the  company 
the  horses  were  lawfully  on  the  highway,  as  the  provision  in  the 
statute  in  regard  to  keeping  the  gates  shut  was  intended  for  the 
protection  of  all  cattle,  horses,  <fec,  passing  along  the  highway, 
whether  strayed  there  or  not,  unless  perhaps  when  voluntarily 
suffered  to  run  at  large  in  the  highway.  And  the  duty  of  keeping 
cattle-guards  at  road-crossings  has  been  considered  to  extend  to 
the  protection  of  all  animals  in  the  street,  and  to  be  a  duty  which 
the  railway  owe  the  public  generally,  and  not  merely  the  owners 
of  cattle  driven  along  the  highway,  which,  in  strictness,  is  the  only 
condition  in  which  cattle  are  rightfully  in  the  highway,  at  common 
law.17 

16  Fawcett  v.  York  &  North  M.  Railw.,  16  Q.  B.  610 ;  s.  c.  2  Eng.  L.  &  Eq. 
289.  But  it  is  a  question  for  the  jury,  under  the  circumstances,  whether  they 
believe  the  gates  were  left  open  by  the  fault  of  the  company's  servants  or  the  tort 
of  a  stranger.     Walford,  179,  citing  two  Nisi  Prius  cases  (1842),  (1845). 

17  Trow  v.  The  Vermont  Central  Railw.,  24  Vt.  487.  And  in  Railroad  v. 
Skinner,  19  Penn.  St.  298,  it  is  said  that  if  cattle  are  suffered  to  go  at  large,  and 
are  killed  or  injured  on  a  railway,  the  owner  has  no  remedy  against  the  company, 
and  may  himself  be  made  liable  for  damage  done  by  them  to  the  company  ;  and 
it  is  unimportant  whether  the  owner  knew  of  the  jeopardy  of  the  cattle  ;  and  that 
it  is  error  to  submit  the  question  of  negligence  to  the  jury,  unless  there  is  some 
evidence  of  such  fact.  In  a  case  in  the  Circuit  Court  of  Virginia,  in  error  from 
the  County  Court,  The  Richmond  &  Petersburgh  Railw.  v.  Mrs.  Jones,  this  sub- 
ject is  discussed  at  length,  6  Am.  Law  Reg.  346.  It  appeared  upon  the  trial  of 
the  case  before  the  jury,  that  the  company  had  been  assessed  in  damages  to  the 
land-owners  along  the  line  of  their  road,  in  consequence  of  additional  fence  being 
required,  by  reason  of  the  construction  of  the  railway.  The  animal,  for  killing 
which  the  surt  was  brought,  was  found  dead  near  the  crossing  of  the  highway  and 
railway  in  such  a  state  as  to  show  that  it  had  been  killed  by  collision  with  the 
company's  engines  very  near  the  crossing.  The  plaintiff  below  suffered  the  beast 
to  run  at  large  and  graze  upon  the  unenclosed  lands  in  the  neighborhood  of  the 
railway,  her  own  land  not  lying  in  immediate  contact  with  the  line  of  the  railway. 
The  case,  not  being  of  sufficient  amount  to  authorize  its  being  carried  to  the 
Court  of  Appeals,  the  decision  was  final,  and  the  case  is  discussed  at  length  upon 
the  principles  involved,  and  the  following  points  ruled  :  I'r'una facie  the  company 
are  not  liable,  even  when  cattle  are  killed  at  a  road-crossing.  Both  the  owner 
of  the  cattle  and  the  company,  in  such  case,  being  apparently  in  the  exercise  of 
their  legal  rights,  the  law  presumes  no  breach  of  duty,  and  thus  imposes  upon 
the  party  who  alleges  such  breach  (he  burden  of  proof.     To  entitle  the  owner  in 

[*469J 


492  INJURIES   TO    DOMESTIC   ANIMALS.  PART  V. 

*  11.   In  the  New  York  &  Erie  Railway  v.  Skinner,18  Gibson,  J., 
lays  dowD  the  rule  in  the  broadest  terms,  that  railways,  indepen- 

Buch  case  tn  recover  of  the  company,  he  must  prove  want  of  care  or  skill  on  the 
part  of  the  company.  But  where  cattle  are  killed  along  the  line  of  the  road,  and 
not  at  a  road-crossing,  the  case  is  much  less  favorable  to  the  owner,  inasmuch  as 
the  company,  having  paid  the  expense  of  fencing  to  the  land-owners  adjoining, 
arc  entitled  to  have  cattle  excluded  from  their  track.  And  the  statute  depriving 
the  company  of  an  action  against  the  owner  of  cattle  for  damages,  caused  by  their 
Btraying  upon  the  road,  does  not  render  it  lawful  for  cattle  to  be  allowed  to  go 
there  unrestrained  by  fences. 

18  19  Penn.  St.  298 ;  s.  c.  1  Am.  Law  Reg.  97.  But  in  Danner  v.  South  Car- 
olina Railw.,  I  Rich.  329,  it  was  held,  that  the  fact  that  cattle  pasturing  on  one's 
own  land  are  injured  by  a  railway  company's  trains,  is  prima  facie  evidence  of 
the  liability  of  the  company,  and  that  the  company  could  only  excuse  themselves, 
by  showing,  from  the  manner  the  injury  occurred,  that  they  were  not  guilty  of 
negligence.  And  that  for  this  purpose  the  company  must  show,  not  only  that 
the  injury  was  not  intentional,  but  that  it  was  unavoidable,  and  occurred  without 
the  least  fault  on  the  part  of  the  engineer.  But  to  the  maintenance  of  an  action 
on  the  case  for  such  injury,  it  is  requisite  to  show,  that  it  arose  from  the  negli- 
gence of  the  company,  and  if  it  appear  to  have  been  wilful,  or  accidental,  this 
action  will  not  lie.  This  seems  to  be  assuming  the  extreme  opposite  of  the  case 
last  cited.  The  truth  will  be  found  to  lie  between  them,  doubtless.  But  the 
rule  in  Danncr's  case  does  not  apply  where  the  animal  killed  is  a  dog.  Wilson  v. 
Kailw.  (  o.,  10  Rich.  (S.  C.)  52.  But  it  does  apply  to  the  killing  of  a  horse  at 
night.  Murray  v.  Same,  id.  227.  By  the  law  of  South  Carolina,  cattle  must  be 
fenced  out,  not  fenced  in.  The  entry,  therefore,  of  cattle,  as  a  horse,  upon  an 
unenclosed  railway  track,  is  no  trespass.  Murray  v.  Railroad  Co.,  10  Rich.  227. 
And  it  was  held,  that  the  owner  of  a  horse,  permitted  to  roam  at  large  over  un- 
enclosed land,  is  not  guilty  of  such  negligence  as  will  embarrass  his  recovery, 
should  the  horse  be  killed  by  the  negligence  of  another.  lb.  The  statute  in 
Georgia,  1847,  makes  railway  companies  liable  for  all  damages  done  to  live-stock 
or  other  property.  But  it  was  held  they  were  not  liable  when  the  damage  was 
caused  by  the  design  or  negligence  of  the  owner.  Macon  &  W.  Railw.  v.  Davis, 
13  <  la.  68.  And  in  New  York  it  is  held,  that  their  general  statute,  making  rail- 
way companies  liable  for  all  damage  done  to  cattle,  horses,  and  other  animals, 
until  they  shall  fence  tb,eir  roads,  renders  them  liable  to  the  owner  of  cattle, 
which  strayed  into  an  adjoining  close,  where  they  were  trespassers,  and  thence 
upon  the  railway,  or  from  the  highway  upon  the  railway.  And  that  it  makes  no 
difference  how  the  cattle  came  upon  the  railway,  unless  it  is  by  the  direct  act  or 
neglect  of  the  owner,  so  long  as  the  company  do  not  fence  their  road  according  to 
the  requirements  of  the  statute.  Corwin  v.  N.  Y.  &  Erie  Railw.,  13  N.  Y.  42. 
In  this  case  the  company  had  contracted  with  the  land-owner  to  build  the  fence, 
which  he  had  not  done,  and  it  was  admitted,  that  if  he  had  owned  the  cattle  he 
could  not  recover,  li  is  somewhat  remarkable,  that  the  rights  of  the  owner  of 
cattle  trespassing  should  be  superior  to  those  of  the  owner  of  the  land.  But  in 
Shepard  v.  Buffalo,  N.  Y.  &  Erie  Railw.,  35  N.  Y.  641,  the  court  advance  a  step 
further  in  the  same  direction,  and  declare,  it-  is  no  defence  that  the  party  whose 
|_*470] 


§  126.  INJURIES   TO    DOMESTIC    ANIMALS.  493 

dent  *  of  statutory  requisitions,  and  as  against  the  adjoining  land- 
owners, are  under  no  duty  whatever  to  fence  their  road,  nor  are 
they  bound  to  run  with  any  reference  whatever  to  the  possibility  of 
cattle  getting  upon  the  track.  Every  man  is  bound,  at  his  peril, 
to  keep  his  cattle  off  the  track,  and  if  he  do  not,  and  they  suffer 
damage,  he  has  no  claim  upon  the  company,  or  their  servants,  and 
is  liable  for  damages  done  by  them  to  the  company  or  its  passen- 
gers. The  opinion  contains  many  sensible  suggestions,  and  is 
curious  for  the  enthusiasm  and  zeal  manifested  by  one  already 
beyond  the  ordinary  limit  of  human  life.  These  views  have  some- 
times been  adopted  in  the  jury  trials  in  other  states,  and  as  reported 
in  the  newspapers,  in  a  recent  case  in  Wisconsin,  Prichard  v.  The 
La  Crosse  and  Milwaukee  Railway.  But  they  are  certainly  not 
maintained  to  the  full  extent,  in  any  country  where  the  maxim  sic 
utere  tuo  ut  alienum  non  Icedas  prevails,  even  to  the  limited  extent 
recognized  in  the  common  law  of  England. 

*  It  was  held  in  Gorman  v.  Pacific  Railway,  that  the  company 
were  not  bound  to  fence  their  road  ;  but  it  was  also  held  that 
the  jury  should  consider  the  fact  that  the  road  was  not  fenced, 
in  determining  whether  the  company  exercised  proper  care  under 
the  existing  circumstances ;  and  it  was  said  that  such  companies 
should  exercise  the  utmost  care  and  diligence  in  the  exercise 
of  their  own  privileges  to  avoid  doing  injury  to  others.19 

12.  It  has  been  considered  that  a  railway  is  not  responsible  for 

cattle  are  killed  was  legally  bound  to  build  the  fence  himself,  under  a  contract 
between  his  assignor  and  the  company.  And  it  seems  to  be  the  disposition  of  the 
court  to  give  the  statute  such  an  extensive  operation  that  the  company  shall  be 
absolutely  responsible  for  all  cattle  injured,  until  it  causes  the  erection  of  proper 
fences,  according  to  the  requirements  of  the  statute.  This  savors  rather  too 
clearly  of  virtuous  enthusiasm  in  the  cause  of  the  public  good,  to  be  very  gener- 
ally followed  by  others,  or  to  be  very  enduring  in  the  place  where  it  originates. 
The  same  rule  is  reaffirmed  in  Tracy  v.  Troy  &  Boston  Railw.,  38  N.  Y.  433.  It 
is  here  said  that  the  inconvenience  of  building  fences  at  railway  crossings  will  not 
excuse  the  company  from  compliance  with  the  express  requirements  of  the  statute. 
Nor  will  another  company  using  the  track  be  in  any  belter  condition  than  the  first 
company,     s.  p.  T.  &  P.  &  W.  Railw.  r.  Rumbold,  40  111.  143. 

19  26  Mo.  441.  And  the  same  rule  of  extreme  care  applies  in  those  states 
where  cattle  are  by  law  allowed  to  go  at  large  in  the  highways,  and  this  duty  of 
care  applies  both  to  the  railway  companies  and  the  owners  of  the  animals, 
each  to  so  exercise  their  own  rights  as  not  to  injure  the  other.  Hannibal  & 
St.  J.  Railw.  v.  Kenney,  41  Mo.  271  ;  Mich.  So.  &  N.  Ind.  Railw.  v.  Fisher,  27 
Ind.  90. 

[*471,  472] 


-lit  I  INJURIES   TO    DOMESTIC    ANIMALS.  PART  V. 

injuries  to  horses,  in  consequence  of  their  being  frightened  on  the 
i,, ,ul  by  the  noise  of  the  engine  and  cars,  in  the  prudent  and 
ordinary  course  of  their  operations.20 

13.  The  subject  of  negligence  in  the  plaintiff,  which  will  pre- 
vent bis  recovery,  is  discussed  much  at  length  in  Beers  v.  The 
Housatonic  Railway,21  and  in  the  main  the  same  views  are  adopted 
in  regard  to  injuries  to  cattle,  which  we  have  stated  in  regard  to 
injuries  to  persons.22  It  is  there  laid  down,  by  the  court,  that 
whether  there  was  negligence  or  want  of  care  in  whatever  degree, 
by  either  party,  is  a  question  of  fact  to  be  determined  by  the  jury, 
and  that  even  where  the  circumstances  are  all  admitted,  it  will  not 
be  determined  as  a  question  of  law,  but  the  inference  of  negligence, 
or  no  negligence,  is  one  of  fact  for  the  jury. 

14.  But  this,  we  apprehend,  is  true  only  where  the  circum- 
stances leave  the  inference  doubtful.  If  the  proof  is  all  one 
way,  either  in  favor  of  or  against  negligence  having  intervened, 
the  inference  is  always  one  of  law  for  the  court.23 

15.  There  are  some  few  cases  where  actions  have  been  brought 
for  injuries  to  cattle  or  horses,  in  consequence  of  some  alleged 
remote  negligence  in  the  company.  In  one  case,24  the  action  was 
for  the  loss  of  a  horse,  by  falling  into  a  large  well  upon  the  com- 
pany's *  grounds.  The  plaintiff  had  frequent  car-loads  of  lumber 
coming  to  the  company's  station,  and  he  requested  them  to  remove 
it  to  a  position  on  their  track  where  it  could  be  discharged  into  his 
own  lumber-yard,  which  they  declining  to  do,  he  drew  it  with  this 
horse  to  the  proper  point,  and  unloaded  it.  Upon  another  car 
arriving  he  attempted  to  do  the  same,  without  consulting  the  com- 
pany, but  his  horse  proved  restive  and  backed  off  the  track,  and 
in  his  struggle  fell  into  the  well.  The  plaintiff  had  a  verdict 
below,  and  a  new  trial  was  awarded,  upon  the  ground  that  the 

20  Burton  v.  The  Phil.  Wil.  &  Bait.  Railw.,  4  Hair.  252. 

21  19  Conn.  506.  And  in  Poler  v.  New  York  Central  Railw.,  16  N.  Y.  476, 
where  a  gate  adjoining  plaintiff's  land  upon  defendant's  land  got  out  of  repair 
and  liable  to  be  blown  open,  and  the  plaintiff,  without  giving  notiee  to  defend- 
ant, took  measures  to  secure  the  gate,  which  proved  ineffectual,  and  his  cattle 
escaped  through  the  fence  and  were  killed  on  the  track  of  defendant's  road,  it 
was  a  question  of  fact  whether  the  plaintiff  was  guilty  of  culpable  negligence. 

-  Post,  §  193,  and  cases  cited  ;  Chicago  &  Miss.  Railw.  v.  Patchin,  16  111.  198. 

23  Underbill  v.  N.  Y.  and  Harlem  Railw.,  21  Barb.  489 ;  Lyndsay  v.  Conn.  & 
Pas.  Rivers  Railw.,  27  Vt.  643;  Scott  v.  W.  &  R.  Railw.,  4  Jones  Law,  432. 

24  Aurora  Branch  Railw.  v.  Grimes,  13  111.  585. 

[*473] 


§  126.  INJURIES   TO   DOMESTIC    ANIMALS.  495 

duty  of  the  company  to  exercise  care  and  prudence  depends  upon 
the  question  whether  the  plaintiff  is  in  the  exercise  of  a  legal 
right.  For  if  not,  he  must  show  that  he  exercised  extraordinary 
care  before  he  can  be  permitted  to  complain  of  the  negligence  of 
another. 

16.  And  in  another  case,25  the  plaintiff's  horse  was  killed  by 
breaking  a  blood-vessel  in  struggling  from  fright  at  the  defendants' 
train  of  cars  in  its  near  approach  to  the  turnpike  road,  which  by 
their  charter  they  were  required  to  purchase,  and  in  crossing  all 
roads  to  restore  them  to  their  former  state  of  usefulness.  At  the 
place  of  the  injury  the  defendants  excavated  their  road-bed  upon  the 
turnpike,  some  five  feet  below  the  surface,  leaving  a  steep  descent 
upon  the  railway,  and  no  fence  between  the  track  of  the  turn- 
pike and  railway.  The  plaintiff  was  passing  along  the  turnpike, 
leading  his  horse  at  the  time.  It  was  held,  that  under  their  char- 
ter the  company  were  liable,  if  the  excavation  impaired  the  safety 
of  the  turnpike  for  public  travel,  and  that  such  "  encroachments 
of  defendants  upon  a  turnpike  is  a  public  nuisance,  for  which  any 
person  sustaining  a  particular  injury  may  maintain  an  action." 

17.  And  it  has  been  laid  down,  in  general  terms,  that  a  railway 
company,  authorized  to  use  steam  locomotive  engines  upon  their 
road,  is  not  liable  for  the  damage  or  disturbance  caused  by  such 
use,  near  a  turnpike  road  existing  before  the  railway- company, 
unless  such  engines  are  used  in  an  extraordinary  and  unreason- 
able manner.26 

18.  And  where  the  legislature  imposed  a  penalty  upon  railways, 
of  8100  for  every  month's  delay,  in  performing  the  duty  of  keep- 
ing *  and  maintaining  legal  and  sufficient  fences  on  the  exterior 
lines  of  their  road,  as  required  by  their  charters,  it  was  held  that 
the  neglect  of  the  corporation  to  perform  this  duty,  rendered  them 
liable  to  reimburse  any  person  suffering  injury  thereby,  in  his 
property,  in  an  action  at  common  law.  And  if  the  defect  in  the 
fences  by  which  the  injury  occurs  was  known  to  the  company, 
they  are  liable  for  the  damage  suffered,  notwithstanding  their 
engineer  was  at  the  time  in  the  exercise  of  due  care,  and  not- 

24  Moshier  v.  Utica  &  Sch.  Railw.,  8  Barb.  427.  But  see  Coy  v.  Utica  &  Sch. 
Railw.,  23  Barb.  643. 

86  Bordentown  &  South  A.  Turnpike  v.  Camden  &  Ainboy  Railw.,  2  Harrison, 
314;  Coy  v.  Utica  &  Sch.  Railw.,  23  Barb.  643. 

[*474] 


496  INJURIES    TO    DOMESTIC    ANIMALS.  PART  V. 

withstanding    the    fence  was   originally  imperfectly  built  by  the 
plaintiff  for  the  company.27 

19.  In  an  action  for  injury  to  domestic  animals  by  the  passing 
engines  of  a  railway  company,  it  is  not  conclusive  of  the  liability 
of  the  company  that  the  damage  occurred  in  consequence  of  the 
passing  of  their  engine,  and  that  the  engineer  omitted  the  statutory 
requirements  of  blowing  the  whistle,  ringing  the  bell,  reversing  the 
engine,  &c.  It  should  still  be  submitted  to  the  determination  of 
the  jury  whether  the  damage  was  caused  by  the  engineer's  neglect 
of  duty,  as  that  is  a  question  lying  exclusively  within  their  pro- 
vince.28 

20.  One  who  voluntarily  suffers  his  cow  to  go  at  large  in  the 
public  streets  of  a  city,  with  no  one  to  take  charge  of  her,  and  thus 
to  stray  upon  a  railway  track,  at  a  time  when  cars  are  passing,  is 
guilty  of  such  carelessness  that  he  cannot  recover  for  any  injury 
to  the  animal  through  any  degree  of  negligence  short  of  that 
which  is  gross.29 

21.  The  competency  of  the  evidence  of  experts  in  regard  to 
the  management  of  locomotives  so  as  to  avoid  the  possibility  of 
doing  damage  to  animals  upon  the  track,  is  discussed  in  a 
late  case  in  Ohio.30  It  is  not  easy  to  define  any  very  exact  rule 
in  regard  to  the  extent  of  the  testimony  of  experts  as  to  the 
practicability  of  avoiding  doing  damage,  under  a  given  state  of 
exposure  *  of  persons  or  animals.  The  subject  is  a  broad  one,  and 
to  its  full  discussion  would  require  a  volume,  instead  of  a  single 
paragraph.  But  we  make  no  question,  the  management  of  a  loco- 
motive steam-engine,  under  any  and  all  conditions  and  circum- 
stances, is  a  matter  of  science  and  skill,  as  to  which  courts  and 
juries  are  not  ordinarily  competent -to  form  a  reliable  and  satisfac- 
tory judgment,  and  that  they  do  therefore  stand  in  need  of  aid 
and  instruction  in  regard  to  the  matter,  whenever  it  comes  before 

N <  iris  v.  Androscoggin  Railw.,  39  Maine,  273.  In  this  case  the  fence  was 
stone-wall,  built  by  plaintiff,  by  contract  with  the  company  some  two  years  before, 
ami  accepted  by  them.  The  gap  in  the  wall  whereby  the  animal  escaped  upon 
the  track  of  the  railway,  occurred  several  days  before,  and  was  known  to  the 
defendants.  There  was  no  other  evidence  of  the  manner  of  constructing  the 
wall.  The  court  held  the  plaintiff  stood  in  the  same  position,  as  to  his  claim,  as 
if  any  other  one  had  built  the  wall. 

w  Memphis  &  Charlotte  Railw.  v.  Bibb,  37  Ala.  699. 
Bowman  v.   Troy  &  Boston  R.  Co.,  37  Barb.  516. 

30  Bellfontaine  &  Iowa  R.  Co.  v.  Bailey,  11  Ohio  (N.  S.),  333. 

[*475] 


§  126.  INJURIES   TO    DOMESTIC    ANIMALS.  497 

them  for  determination,  and  that  consequently  the  testimony  of 
experts  may  always  be  received  under  the  ordinary  limitations  and 
restrictions. 

22.  The  subject  of  the  responsibility  of  railways  for  injury  to 
cattle  running  at  large  and  coining  upon  their  track  is  very  care- 
fully considered  in  a  later  case  in  Ohio.31  It  is  here  declared  that 
the  owner  of  cattle  who  does  not  keep  them  within  his  own  en- 
closure, when  he  might  do  so  by  proper  care,  cannot  require  of  a 
railway  company  to  regulate  the  management  and  speed  of  their 
trains  with  reference  to  cattle  coming  upon  their  track.  Such 
companies,  like  all  others,  have  a  right  to  regulate  the  management 
and  conduct  of  their  business  solely  witli  reference  to  the  security 
of  persons  and  property  in  their  charge,  and  the  meeting  of  their 
reasonable  appointments  in  regard  to  them,  and  may  make  their 
plans  upon  the  reasonable  and  legal  presumption  that  other  per- 
sons will  perform  all  their  legal  obligations  towards  them,  and 
consequently  that  the  owners  of  domestic  animals  will  keep  them 
at  home,  where  alone  they  belong,  and  not  suffer  them  to  stray 
upon  the  track  of  a  railway  company,  unless  they  are  prepared  to 
incur  the  legitimate  hazards  of  such  an  exposure.  But  when  a 
railway  company  finds  cattle  upon  its  track,  it  is  bound  to  avoid 
damage  to  them,  if  practicable,  by  the  same  degree  of  effort  that  a 
prudent  owner  of  the  cattle  would  be  expected  to  do,  properly  con- 
sidering the  hazard  both  to  the  train  and  the  cattle.  And  the 
proper  inquiry  in  such  a  case  is,  whether  the  agents  of  the  com- 
pany exercised  reasonable  and  proper  care,  in  running  their  engine, 
to  avoid  injury  to  the  cattle  of  the  plaintiff;  and  the  facts  and  cir- 
cumstances bearing  upon  this  question  are  for  the  exclusive  con- 
sideration of  the  jury. 

23.  And  much  the  same  view  is  taken  in  a  case  in  Kentucky,32 
where  it  is  said  that  the  paramount  duty  of  a  railway  *  com- 
pany, in  the  conduct  of  a  train,  is  to  look  to  the  safety  of  persons 
and  property  therein,  and  subordinate  to  this  is  the  duty  to 
avoid  unnecessary  damage  to  animals  straying  upon    the   road. 

31  Central  Ohio  R.  Co.  v.  Lawrence,  13  Ohio  (N.  S.),  66. 

32  Lou.  &  Frankfort  R.  Co.  v.  Ballard,  2  Met.  (Ky.)  177.  But  railway  com- 
panies are  not  bound  to  maintain  fences,  suilieient  to  exclude  the  possibility  of 
cattle  coming  upon  their  line,  even  under  the  extreme  duty  and  obligation  which 
they  owe  toward  the  protection  of  their  passengers.  Buxton  v.  N.  E.  Railw.  Law 
Rep.  3  Q.  B.  549. 

vol.  i.  32  [*4TG] 


498  INJURIES  TO    DOMESTIC    ANIMALS.  PART  V. 

And  while  a  railway  company  is  not  justified  in  any  conduct  of  its 
agents  iu  regard  to  cattle  upon  its  track,  which  is  needless,  wan- 
ton, or  wilful,  it  cannot  be  responsible  for  any  thing  short  of  this, 
since  the  owners  of  cattle  are  specially  bound  to  keep  them  off  the 
tracks  of  railways. 

24.  And  in  a  case  in  Maryland,33  it  was  held  that  the  well- 
Bettled  principle  of  the  common  law,  that  a  plaintiff  is  not  entitled 
to  recover  for  injuries  to  which  his  own  fault  or  negligence  has  di- 
rectly contributed,  is  not  abrogated  by  the  several  acts  of  assembly, 
regulating  the  liabilities  of  railways  in  this  state  for  stock  killed  or 
injured  by  their  trains.  These  acts  leave  the  question  of  the  effect 
of  the  plaintiff's  conduct  upon  his  right  to  recover  for  the  acts  of 
others  where  it  was  at  the  common  law.  But  the  onus  of  proof  is 
changed  by  the  statute,  and  where  stock  is  killed  the  law  now  im- 
putes negligence  to  the  company,  unless  it  can  show  that  the  dam- 
age results  from  unavoidable  accident.33  It  was  not  intended 
hereby  to  interfere  with  the  time-table  or  the  rate  of  speed  on 
railways.  The  act  leaves  all  this  to  the  discretion  of  the  companies, 
but  imposes  upon  them  the  highest  degree  of  care  and  caution  ; 
and  in  the  absence  of  fault  on  the  part  of  the  plaintiff  it  must 
appear  that  the  collision  took  place  without  any  fault  or  negligence 
on  the  part  of  the  company  or  its  agents,  in  order  to  exonerate 
them.  In  other  words,  if  the  plaintiff  is  not  in  fault  the  company 
will  be  responsible,  unless  the  damage  is  the  result  of  unavoidable 
accident. 

25.  In  Indiana  it  is  held,  that  in  an  action  against  the  company 
for  killing  stock  it  must  appear,  both  in  the  complaint  and  proof, 
that  the  damage  resulted  from  the  carelessness  of  the  company  or 
the  omission  to  fence  their  road.34 

26.  In  Missouri35  it  is  determined  by  statute  and  the  construc- 
tion *  of  the  courts,  that  if  the  accident  occur  upon  a  portion  of  the 
line  not  enclosed  by  a  lawful  fence,  and  not  at  a  road  or  street 
crossing,  whereby  domestic  animals  are  killed  or  injured,  the  com- 
pany are  responsible,  at  all  events,  and  without  reference  to  any 
question  of  negligence,  either  on  their  part  or  that  of  the  owner  of 
the  animals.     But  at  highway  or  street  crossings  the  company  are 

33  Keech  v.  Baltimore  &  Wash.  R.  Co.,  17  Md.  32. 

34  Indianapolis,  &c,  R.  Co.  v.  Sparr,  15  Ind.  440;   Same  v.  Williams,  id.  486. 
55  Meyer  v.  North  Mo.  R.  Co.,  35  Mo.  352;  Powell  v.  Han.  &  St.  Jos.  R. 

Co.,  id.  -157  ;  Burton  v.  North  Mo.  R.  Co.,  30  id.  372. 
[*477J 


§  126.  INJURIES   TO    DOMESTIC    ANIMALS.  499 

not  responsible  for  any  damage  to  such  animals,   unless  it  occur 
through  some  neglect  or  fault  on  their  part. 

27.  In  California36  it  seems  to  be  considered  that  the  custom  of 
the  country  to  suffer  domestic  aninals  to  go  at  large  on  the  com- 
mons will  override  the  rule  of  the  common  law,  obliging  the  owner 
to  restrain  his  cattle  within  his  enclosures,  and  that  consequently 
no  negligence  is  imputable  to  the  owner  on  account  of  so  suffering 
his  animals  to  go  at  large.  But  railway  companies  are  not  held 
responsible  for  damage  inflicted  upon  such  animals  so  running  at 
large  unless  it  might  have  been  avoided  by  ordinary  care  and  pru- 
dence on  the  part  of  the  company  at  the  time.37 

28.  There  seems  to  have  been  some  very  nice  questions  raised 
in  the  courts  of  Illinois,  for  if  it  were  not  so  some  of  the  decisions 
would  seem  to  partake  largely  of  the  character  of  incomprehensi- 
bility. For  we  find  it  gravely  declared,  in  one  case,38  that  the  law 
does  not  require  any  different  words  to  be  used  in  proving  a  case, 
against  a  railway  from  those  used  in  other  cases.  It  is  only  neces- 
sary the  mind  should  be  convinced  of  the  existence  of  the  neces- 
sary *  facts.  And  in  the  same  case  :  The  presumption  is  that  the 
houses  compose  a  village,  and  if  an  animal  is  killed  beyond  the 
houses  the  presumption  is  that  it  is  killed  beyond  the  village,  and 
if  the  town  extends  beyond  the  houses  the  defendant  should  know 
the  fact  ;  and  also :  Every  one  is  supposed  to  have  some  idea  of 
the  value  of  such  property  as  is  in  general  use,  and  it  is  not  neces- 
sary to  have  a  drover  or  butcher  to  prove  the  value  of  a  cow.     And 

™  Waters  v.  Moss,  12  Cal.  535.  And  in  Alger  v.  Miss.  &  Mo.  Railw.  Co., 
10  Iowa,  268,  it  was  held  that  permitting  cattle  to  run  at  large  does  not  impute 
negligence  to  the  owner,  nor  is  he  liable  as  a  trespasser  if  they  are  found  upon 
an  unfenced  railway-  A  railway  company  is  bound  to  exercise  ordinary  care 
not  to  injure  animals  coming  upon  their  track  through  defect  of  fence.  After 
the  road  is  fenced  the  company  is  only  liable  in  such  cases  for  gross  neglect. 
And  in  McCall  v.  Chamberlain,  13  Wis.  637,  it  is  held  that  the  duty  upon  rail- 
way companies  to  fence  their  roads  is  intended  for  the  protection  of  the  public 
generally.  And  until  such  fences  are  built  the  company  is  liable  for  all  injuries 
to  animals  upon  their  track,  without  reference  to  any  question  of  being  rightfully 
in  the  adjoining  land  from  whence  they  escaped  upon  the  track.  And  the  lessee 
of  the  company  assumes  all  their  responsibility. 

37  Richmond  v.  Sacramento  Valley  R.  Co.,  18  Cal.  351.  There  is  no  statute 
here  requiring  railways  to  be  fenced  by  the  companies.  But  when  that  is 
required,  and  the  plaintiff  alleges  the  duty  was  not  performed,  he  must  prove  it 
as  part  of  his  case.     Indianapolis,  &c,  R.  Co.  v.  Wharton,  13  Ind.  50(J. 

38  Ohio  &  Miss.  R.  Co.  v.  Jivin,  27  111.  178. 

[*478] 


500  INJURIES   TO    DOMESTIC    ANIMALS.  PART  V. 

in  another  case  in  this  state  it  seems  to  have  been  claimed  that  the 
declaration  against  a  railway  for  injuries  to  domestic  animals  must 
negative  the  possibility  of  any  excuse  on  the  part  of  the  company. 
But  the  court  hold  that  matters  of  excuse  on  the  part  of  the  com- 
pany, as  that  the  animals  were  killed  at  a  farm-crossing,  and  that 
the  road  was  properly  fenced  by  them,  must  be  shown  by  way  of 
defence.89  But  it  was  held  in  another  case  in  that  state,  that  the 
plaintiff,  in  making  out  his  own  cause  of  action,  must  negative  by 
proof  the  existence  of  a  public  crossing  where  the  killing  occurred, 
and  should  show  that  the  defendants  were  bound  to  fence  at  that 
point.40  And  it  was  held  in  a  later  case,  that  it  was  negligence  in 
a  railway  company  to  allow  vegetation  to  grow  upon  its  right  of 
way,  so  that  cattle  may  be  concealed  from  view.41 

29.  If  one  allows  stock  to  run  in  the  highway  near  a  railway 
crossing  it  is  such  negligence  that  he  cannot  recover  for  any  in- 
jury 42  thereto.     And  if  one  allows  his  cattle  so  to   run    in  the 

highway,  and  thus  come  upon  the  track  of  the  railway,  and  the 
company  use  all  statutory  and  other  reasonable  precautions  to 
avoid  damage  to  them,  the  owner  cannot  recover  for  any  such 
damage  which  is  thus  caused  either  wholly  or  in  part  by  his  own 
neglect,  and  he  would  also  be  liable  for  all  injury  to  the  com- 
pany or  to  persons  or  property  in  their  charge.42  And  the  omis- 
sion of  the  company  to  sound  the  whistle  or  to  ring  the  bell,  in 
such  cases,  will  not  render  them  responsible  for  damage  to  cattle, 
unless  it  appear  that  such  precautions  would  have  prevented  the 
injury.43 

30.  In  actions  for  injury  to  cattle,  if  negligence  is  clearly  proved 
on  the  part  of  the  plaintiff,  the  company  are  not  responsible  unless 
*  guilty  of  gross  negligence,  which  implies  wilful  injury.44  In  such 
actions  founded  upon  the  statute,  the  declaration  should  negative 
all  the  exceptions  in  the  statute;46  but  the  plaintiff  is  not  called 
upon   to  negative  in  proof  the  existence  of  any  contract  between 

3;'  Great  Western  Railw.  v.  Helm,  27  111.  198. 

40  Ohio  &  Miss.  R.  Co.  v.  Taylor,  27  111.  207. 

41  Bass  r.  Chicago,  B.  &  Quincy  R.,  28  111.  9. 

42  Ch.  Bur.  &  Quincy  R.  Co.  v.  Cauffinan,  28  111.  513. 

43  Illinois  Central  Railw.  v.  Phelps,  29  111.  447. 

44  Illinois  Central  Railw.  v.  Goodwin,  30  111.  117. 
*°  Great  Western  Railw.  v.  Bacon,  30  111.  347. 

[*479] 


§  126.  INJURIES   TO    DOMESTIC    ANIMALS.  501 

himself  and  the  company  to  maintain  the  fences  along  the  line  of 
the  road  against  his  land.45 

31.  As  the  statute  does  not  require  railway  companies  to  fence 
their  road  within  the  limits  of  cities  and  villages,  they  are  not 
responsible  for  damage  to  domestic  animals  caused  by  their  trains 
within  such  corporate  limits ;  and  if  the  animal  come  upon  their 
track  within  these  limits,  and  is  driven  by  the  train  beyond  these 
limits  and  there  killed,  without  any  fault  on  the  part  of  the  com- 
pany, it  is  immaterial  whether  the  road  was  properly  fenced  at  the 
point  where  the  animal  was  killed,  as  it  came  upon  the  track  at  a 
point  where  the  company  were  not  obliged  to  fence.-46  The  mere 
killing  of  an  animal  by  a  railway  company  does  not  render  them 
liable,  unless  they  have  been  guilty  of  negligence  or  the  case  comes 
within  the  statute.46 

32.  In  cases  where  the  company  are  required  by  statute  to  ring 
the  bell  or  sound  the  whistle,  and  that  is  omitted,  if  injury  occur 
in  consequence,  they  will  be  responsible,  unless  the  party  injured 
was  himself  guilty  of  negligence  contributing  to  such  result.47  It 
is  here  said  that  railway  companies  are  responsible  for  injuries  to 
persons  or  property,  when  wilfully  done,  or  resulting  from  gross 
neglect  of  duty.  The  company  to  exonerate  themselves  must  use 
all  reasonable  or  statutory  precautions  to  prevent  the  injury,  and 
an  omission  to  do  so  will  render  them  responsible,  if  the  omission 
produce  or  contribute  to  the  injury,  and  the  plaintiff  was  not 
himself  in  fault  in  any  particular  also  contributing  to  the  injury.47 

33.  But  in  actions  of  tort  against  railway  companies  to  recover 
damages  for  killing  cattle  upon  their  track,  it  is  not  competent  to 
prove  the  company  guilty  of  negligence  in  running  their  other 
trains,  beside  the  one  by  which  the  cattle  were  killed.48 

34.  The  rule  of  damages  for  injuries  done  to  cattle  is  the  value 
of  the  animal  or  the  actual  pecuniary  loss,  unless  there  is  proof  of 
wantonness  or  wilful  injury.49 

46  Same  v.  Morthland,  30  111.  451 ;  Galena  &  Chicago  R.  Co.  v.  Griffin,  31 
111.  303.  As  to  cases  under  positive  statute,  see  Illinois  Central  llailw.  Co.  v. 
Swearingen,  33  111.  2S9. 

47  Great  Western  R.  Co.  v.  Geddis,  33  111.  304. 

4?  Mississippi  Central  Railw.  v.  Miller,  40  Miss.  45. 
49  Toledo,  P.  &  W.  Railw.  v.  Arnold,  43  111.  418. 

[*479] 


FENCES. 


PART  V. 


♦CHAPTER     XIX. 


FENCES. 


SECTION    I. 


whom  rests  the  Obligation  to  maintain  Fences. 


■  glish  statute  Ou  re  is  a  separate 
provision  made  for  fencing. 

2.  This  provision  is  there  enforced  against 

the  companies  by  mandamus. 

3.  But  where  no  such  provision  exists,  the 

expense  of  fencing  is  part  of  the  land 
damages. 

!  where  that  is  assessed,  and  payment 
resisted  by  the  company,  the  land-owner 
is  not  obliged  to  fence. 

5.  In  some  cases  it  has  been  held  the  fencing 

is  'o  be  done  equally,  by  the  company 
and  the  land-owner. 

6.  Assessment  of  land-damages,  on  condition 

company  build  fences,  raises  an  im\ 
duty  on  their  part. 

7.  In  some  states,  owners  of  cattle  not  re- 

quired to  confine  them  upon  their  own 
land. 

8.  Lessee  of  railway  bound  to  keep  up  fences 

and  farm  accommodations. 

9.  Company  bound  to  fence  land  acquired  by 

grant. 

m-C7-ossings  required  wherever  neces- 
sary. 
11.    Where  landowner  declines  farm  accom- 
has  no  redress ;    courts  of 
equity  will  not  decree  specific  perform- 

12    /  and  farm  accommodations  not  re- 

quired for  safety  of  servants  and  em- 
ploye's. 

!  proof  where  company  liable  for 

all  cattle  killed. 

14.  Party  bound  to  fence  assumes  primary 

responsibility. 

15.  Company  not   responsible  for  injury  at 

road-crossings. 

[*  480] 


16.  Railway  companies  not  responsible  for  in- 

jury to  cattle  by  defect  offence  about 
yard. 

17.  Case  of  horse  escaping  through  defect  of 

fence. 

18.  It  must  appear  the  injury  occurred  by 

default  of  company. 

19.  Cattle-guards  required  in  villages  but  not 

so  as  to  render  streets  unsafe. 

20.  Company  responsible  for  injuries  through 

defect  of  fences  and  cattle-guards. 

21.  Courts  of  New  Hampshire  maintain  com- 

mon-law responsibility. 

22.  Company  responsible  as  long  as  they  con- 

trol road. 

23.  Maintaining  fences  along  the  line  of  rail- 

way, matter  of  police.  Duty  of  fenc- 
ing, under  the  English  statute  and  at 
common  law.  Fence  held  important  in 
keeping  children  off  the  track. 

24.  Rule  as  to  land-owner  agreeing  to  main- 

tain fence,  SfC. 

25.  Company   not  responsible  for  defect  of 

fence  unless  in  fa  ult. 

26.  Railway  not  responsible  in  Indiana  un- 

less in  fault. 

27.  Company  not  liable  where  fence  thrown 

down  by  others. 

28.  Where  owner  in  fault  he  cannot  recover 

unless,  SfC. 

29.  Rule  of  damages  for  not  building  fence, 

frc. 

30.  Land-owner  7nust  keep  up  bars. 

31.  Illustrations  of  the  general  rule. 

32.  In  actions  under  statute   case   must   be 

brought  within  it. 

33.  In  Pennsylvania  one  required  to  keep  his 

cattle  at  home. 

34.  Statutory  fence  required. 


§  127.  UPON    WHOM   THE    DUTY   RESTS.  503 

*  §  127.  1.  By  the  Railway  Clauses  Consolidation  Act1  it  is  made 
the  duty  of  the  railways  in  England,  before  they  use  land  for  any 
of  their  purposes,  to  fence  it,  and  make  convenient  passes  for  the 
owner,  which,  if  the  parties  do  not  agree,  are  to  be  determined  by 
two  magistrates.  Under  this  statute  it  has  been  held,  that  the 
railway  is  not  excused  from  making  the  necessary  accommodations 
to  keep  up  communication,  to  the  owner,  between  different  parts 
of  lands,  intersected  by  the  line  of  a  railway,  because  these  are  not 
defined  in  the  arbitrators'  award  of  land  damages.  They  are 
totally  distinct  things  from  the  land  damages.2  And  where  the 
jury,  assessing  land  damages,  also  made  a  separate  verdict  for  the 
expense  of  crossing  the  railway  by  a  private  way,  it  was  considered 
that  they  exceeded  their  jurisdiction,  and  their  proceedings  were 
quashed.3 

2.  It  is  considered,  in  the  English  courts,  that  the  expense  of 
building  fences  and  crossings  being  imposed  upon  the  railways  by 
statute  perpetually,  and  the  mode  of  enforcing  its  performance 
pointed  out  in  the  statute,  it  has  no  connection  with  the  land 
damages,  but  is  to  be  enforced  under  the  statute,  and  land  dam- 
ages are  to  be  appraised,  upon  the  basis  of  that  duty  resting  upon 
the  railway. 

3.  But  where  the  statute  makes  no  such  provision,  the  expense 
of  fencing  and  making  crossings  are  important  considerations  in 
estimating  damages  for  the  land  taken,  and  this  expense  should 

1  8  &  9  Vict.  c.  20,  §  40.  But  in  Kyle  v.  Auburn  &  Rochester  Railw.,  2 
Barbour's  Ch.  489,  the  court  declined  to  interfere  by  injunction,  to  compel  the 
building  of  a  farm-crossing,  although  the  company  assumed  before  the  jury  for 
assessing  land  damages,  that  such  a  crossing  should  be  built  by  them,  the  plans 
showing  no  such  crossing.  It  is  said,  under  such  circumstances,  to  be  the  duty 
of  the  land-owner  to  make  necessary  crossings,  and  that  he  is  a  trespasser  for 
crossing  the  railway  without  them  ;  and  this  should  be  so  considered,  in  assessing 
damages  for  taking  the  land,  and  compensation  made  for  such  expense. 

2  Skerrat  v.  The  North  Staffordshire  Railw.,  5  Railw.  C.  166,  per  Lord 
Cottenham,  Chancellor.     See^jo.^,  §  151,  n.  :!. 

3  la  re  South  Wales  Railw.  Co.  v.  Richards,  6  Railw.  C.  197.  So  too  where 
the  land-owner  stipulated  with  the  promoters  for  certain  watering-places  and 
Other  conveniences,  and  to  accept  £5,000  for  special  damage,  and  to  withdraw 
thereupon  opposition  to  the  bill,  it  was  held  the  duty  to  make  suitable  watering- 
places  might  lie  enforced  by  mandamus.  Reg.  v.  York  &  N.  Midland  Railw., 
3  Railw.  C.  7(54 ;  infra,  §j  L28,  151,  L52.  The  provision  for  fence-,  in  the  Eng- 
lish statute;,  being  a  separate,  independent,  general  provision,  is  enforced, 
altogether  aside  of  the  proceedings  to  assess  land  damages. 

[*481J 


504  FENCES.  PART  V. 

*  undoubtedly  be  borne  by  the  company,  in  addition  to  paying  the 
value  of  the  land,  for  otherwise  the  land  is  taken  without  an  equiv- 
alent. I !ut  the  courts  in  most  of  the  American  states  have  resisted 
this  view  wherever  it  was  practicable,  more  commonly  upon  some 
mical  ground  of  presumption  or  inference,  when,  in  fact,  the 
omission  of  such  an  express  provision  in  the  charter  or  the  general 
laws  o(  the  states  was  wholly  the  result  of  oversight  in  the  legislat- 
ures. But  it  is  refreshing  to  find  some  courts  so  far  relieved  from 
the  trammels  of  mere  technicality  as  not  to  feel  compelled  to  sacri- 
fice an  obvious  principle  of  justice  to  the  shadow  of  a  mere  form. 
In  a  case  in  California  we  find  an  announcement  upon  this 
question  which  evidently  comes  from  the  right  quarter,  a  sense  of 
simple  justice.  It  declares,  if  fences  are  rendered  necessary  for 
the  protection  of  the  crops  of  the  land-owner  by  means  of  the  con- 
struction of  the  railway  through  the  land,  the  cost  of  such  fences 
must  be  included  in  the  compensation  to  be  paid  by  the  company,4 
and  this  by  necessary  consequence  must  include  a  sum  sufficient 
to  indemnify  the  owner  against  the  constantly  accruing  expenses 
of  maintaining  such  fences.  And  the  tendency  of  the  more 
recent  decisions  is  sensibly  in  this  direction ;  and  we  might 
add,  without  offence,  that  in  our  judgment  it  is  the  only  sen- 
sible direction  the  decisions  could  take,  and  we  have  always 
expected  them  to  take  such  a  direction  in  the  end,  however  late  it 
may  come.5 

4.  And  where  in  such  circumstances  the  commissioners  assessed 
the  land  damages,  and  a  separate  sum  for  building  fences,  and 
judgment  was  rendered  in  favor  of  the  land-owner,  for  both  sums, 
but  the  payment  resisted  by  a  proceeding  in  Chancery,  on  the  part 
of  the  railway,  and  while  this  was  still  undecided,  the  company 
commenced  running  their  engines,  and  the  cattle  of  the  occupier 
of  the  land  strayed  upon  the  track,  and  were  killed  by  the  engines 
of  the  company,  it  was  held,6  that  the  obligation  to  maintain  the 

4  Sacramento  Valley  Railw.  v.  Moffatt,  6  Cal.  74. 

Evansville  Railw.  v.  Fitzpatrick,  10  Ind.  120;  Same  v.  Cochran,  id.  560; 
Same  V.  Stringer,  551.     This  is  now  remedied  by  statute  in  many  states. 

•  Quimby  v.  Vermont  Central  Railw.  Co.,  23  Vt.  387;  See  a'so  Vander- 
kar  r.  Rensselaer  &  Sara.  Railw.,  13  Barb.  390.  But  in  the  English  Railway 
Acts,  where  the  company  is  required  to  make  crossings,  where  land  is  divided, 
and  the  mode  of  determining  the  nature  of  the  crossings  is  to  be  referred  to  two 
justices,  upon  the  application  of  the  land-owner  ("in  case  of  any  dispute")  it 
was  held,  that  until  the  company  have  made  a  communication,  a  party  whose 

[*482] 


§  127.  UPON   WHOM   THE    DUTY   RESTS.  505 

*  fence  rests  primarily  upon  the  company,  and  until  they  have  either 
built  the  fences,  or  paid  the  land-owner  for  doing  it,  a  sufficient  time 
before  to  enable  him  to  do  it,  the  mere  fact  that  cattle  get  upon  the 

land  bail  been  severed  by  the  railway  has  a  right  to  pass  from  one  portion  of  his 
property   to   the  other  across   the   railway,  at  any  point,  ami   that  the   section 
requiring  the  owner  to  pass  at  such  a  place  as  shall  "  be  appointed11  for  cross- 
ing, nu-ans,  "when  such  places  shall  have  been  appointed.11     Grand  .Junction 
Railw.  v.  White.  8  M.  &  W.  214;  s.  c.  2  Railw.  C.  559.     And  where,  at  the 
time  of  appraising  land  damages,  the  land-owner,  in  the  presence  of  the  agents 
of  the  company,  pointed  out  to  the  commissioner  the  place  where  he  would  have 
a  farm-crossing,   and   no    objection  was  made   by  the  company,   and  the   sum 
awarded  was  paid,  but  the  company,  in  constructing  their  road,  were  throwing 
up  an  embankment  at  that  point,  and  locating  the  crossing  at  a  different  place, 
where  it  would  be  inconvenient  for  the  land-owner,  an  injunction  was  granted, 
until   the  company  should  either  make  a  suitable  crossing  or  compensate  the 
land-owner.     Wheeler  v.  Rochester  &  Sy.  Railw.,  12  Barb.  227  ;  Milwaukee  & 
Mis.  Railw.  v.  Eble,  4  Chand.  72.     It  is  here  held,  that  the  land-owner  is  enti- 
tled to  include,  in  his  damages,  the  expense  of  fencing,  as  incidental  to  the  taking 
of  the  land.     But  the  contrary  is  held  in  a  very  elaborate  case  in  Iowa,  Henry 
v.   Dubuque  &  Pacific  Railw.,  2   Clarke,  288.     But  the  argument,  of  the  court 
seems  to  us  unsatisfactory  and  suicidal.    And  where  the  railway  at  first  contracted 
with  the  land-owner  to  build  the  fence  for  them  at  a  specified  price,  but  a  con- 
troversy arising  in  regard  to  land  damages,  the  commissioners  reported  a  sum 
which  was  finally  confirmed  by  the  court,  and  an  additional  sum  for  the  expense 
of  building  the  fence,  and  the  plaintiff  took  judgment  and  execution  for  this  also, 
and  subsequently  built  the  fence,  according  to  his  contract  with  the  company, 
and   sued  the  company   for  the  price,  it  was  held  that  he  could  not  recover,  the 
former  judgment  having  merged  the  contract,  and  imposed  upon  him  the  duty  to 
build  the  fence,  under  the  award  and  judgment.     It  was  also  held  that  the  land- 
owner could  not  claim  to  recover  any  thing  beyond  the  award  for  having  built  the 
fence,  according  to  the  original  contract,  which  rendered  it  more  expensive  to 
him  than  it  would  otherwise  have  been.     Curtis  v.  Vermont  Central  Railw.,  23 
Vt.  613;  s.  c.  1  Am.  Railw.  C.  258;  see  Lawton  v.  Fitchburg  Railw.,  8  Cush. 
230.     And  where  the  statute  requires  the  company  to  make  farm-crossings  where 
they  divide  land,  it  is  not  proper  for  the  jury,  in  assessing  compensation  to  the 
land-owner,  to  include  the  expense  of  a  bridge  for  the  purpose  of  a  farm-cross- 
ing.    Philadelphia,  Wilmington,  and  Baltimore  Railw.  v.  Trimble,  4  Wharton, 
47;  s.  c.  2  Am.  Railw.  C.  245.     In  the  case  of  Chicago  &  Rock  Island  Railw. 
v.  Ward,  16   Illinois,  522,  where  the   company   covenanted   to   maintain   fences 
upon  land  intersected  by  their  road,  and  failed  to  perform  the  covenant,  and 
crops  were  destroyed,  it  was  held  the  company  were  liable  for  the  value  of  the 
crops  growing  upon  the  land  and  destroyed  as  of  the  time  when  fit  for  harvesting. 
This  does  not  seem  entirely  in  accordance  with  general  principles  upon  this  ques- 
tion.    The   case  professes  to  go  upon  the  authority  of  De  Wint  v.  Wiltie,  9 
Wend.  325.     But  see  §§  148,  156. 

[*483] 


50G  FENCES.  PART  V. 

*  road  from  the  land  adjoining  is  no  ground  for  imputing  negligence 
t.>  the  owner  of  the  cattle.6 

5.  In  some  cases  in  this  country  it  has  been  held  that  the  rail- 
way and  the  adjoining  land-owner  are  to  defray  equal  proportions 
of  the  expense  of  maintaining  fences,  upon  the  principle  of  being 
adjoining  proprietors,  and  being  equally  interested  in  having  the 
fence  maintained,  unless  the  land-owner  chooses  to  let  his  land  lie 
in  common,  and  in  that  case  the  company  must  be  at  the  whole 
expense  of  fencing,  as  a  necessary  protection  and  security  to  their 
business.7 

7  In  the  matter  of  the  Rensselaer  &  Sar.  Railw.,  4  Paige,  553.  In  North- 
eastern Railw.  v.  Sineath,  8  Rich.  185,  it  is  held  that  damages  are  not  to  be 
assessed  for  fencing  through  unenclosed  land  used  for  grazing.  In  a  case 
in  Kentucky,  Louisville  &  Frankfort  Railw.  v.  Milton,  14  B.  Monr.  75,  it  is 
held,  that  where  one  grants  the  right  of  building  a  railway  across  his  land,  nei- 
ther the  land-owner  nor  the  company  are  bound  to  fence  adjoining  the  railway. 
If  the  land-owner  suffer  his  cattle  to  run  at  large,  as  he  may,  if  he  choose  to 
incur  the  risk,  he  cannot  recover  damages  of  the  company  for  any  injury  sustained 
by  them,  unless  it  might  have  been  avoided  by  the  agents  of  the  company,  with 
due  regard  to  the  safety  of  the  train  and  its  contents.  If  such  cattle,  permitted 
to  run  at  large  upon  the  railway  track,  are  killed  accidentally  by  the  train, 
when  running  at  its  customary  speed,  the  owner  cannot  recover  of  the  company. 
The  court  here  discountenance  the  notion  that  seems  sometimes  to  have  pre- 
vailed, that  if  the  railway  are  in  the  right  in  running  their  train,  and  especially 
where  cattle  are  trespassing  upon  the  track,  they  may  destroy  them  at  will,  with- 
out incurring  any  responsibility.  And  in  regard  to  the  case  of  New  York  & 
Erie  Railw.  v.  Skinner,  19  Penn.  State,  298,  the  court  say:  "  This  court  is  not 
disposed  to  sanction  all  the  legal  doctrines  avowed  in  that  opinion."  Railways 
are  only  bound  to  the  use  of  such  diligence,  prudence,  and  skill,  to  avoid  injury 
to  cattle  rightfully  in  the  highway  at  a  road-crossing,  as  prudent  men  exercise 
in  the  conduct  of  their  own  business.  And  as  to  cattle  wrongfully  upon  the 
railway,  unless  the  injury  is  caused  wilfully,  or  through  gross  negligence,  the 
company  are  not  liable.  Chicago  &  Mississippi  Railw.  v.  Patchin,  16  111.  198; 
Great  Western  Railw.  v.  Thompson,  17  111.  131  ;  Quimby  v.  Vt.  Central  Railw., 
23  Vt,  387  ;  Central  Mil.  Tr.  Railw.  v.  Rockafellow,  17  111.  541  ;  Railroad  Co. 
v.  Skinner,  19  Penn.  St.  298;  111.  Central  Railw.  v.  Middlesmith,  4(>  111.  494; 
But  this  latter  case  lays  down  the  rule  of  law,  in  regard  to  the  duty  of  railways 
to  avoid  injury  to  cattle  somewhat  more  stringently  than  the  former  cases. 

In  a  case  in  New  Hampshire,  White  v.  Concord  Railway,  10  Foster,  188, 
it  was  held,  that  where  the  statute  required  railways  to  fence  and  maintain 
proper  cattle-guards,  cattle-passes,  and  farm-crossings,  for  the  convenience  and 
safety  of  the  land-owners  along  the  side  of  the  road,  provided  theyr  might  instead 
settle  with  the  land-owners  therefor,  and  a  railway  divides  a  pasture,  and  a 
crossing  is  made,  under  the  statute,  the  land-owner  may  let  his  cattle  run  in  the 
pasture  "  without  a  herdsman,11  and  that  the  company  will  be  liable  for  their 
[*484] 


§  127.  UPON    WHOM   THE   DUTY   RESTS.  507 

*  6.  But  many  of  the  American  cases  assume  the  ground  that 
where  there  is  no  statute  imposing  the  duty  of  fencing  upon  the 

*  company,  and    no  stipulation,  express  or  implied,  between  the 
company  and    the   land-owners  that  they  shall  maintain  fences, 

*  they  are  not  bound  to  do  so,  but  the  common-law  duty  of  keep- 
ing one's  cattle  at  home  rests  upon  the  land-owner.8     And  this 

destruction  while  crossing  the  track  from  one  pasture  to  the  other,  unless  the 
injury  was  caused  by  accident,  or  by  the  fault  of  the  owner,  or  unless  it  appear 
that  the  company  have  settled  with  the  owner  in  relation  to  such  guards,  passes, 
and  farm-crossings.  And  it  was  held,  also,  in  the  same  case,  that  where  the 
plaintiff  deeded  the  land  to  the  company  upon  condition,  "  said  corporation  to 
fence  the  land  and  prepare  a  crossing,  with  cattle-guards,  at  the  present  travelled 
path,  on  a  level  with  the  track,11  this  was  not  such  settlement,  and  did  nut  alter 
the  legal  relations  of  the  parties.  In  this  case,  both  parties  being  in  the  right, 
were  bound  to  the  degree  of  prudence  which  is  to  be  expected  of  prudent  men. 
The  railway,  knowing  of  the  crossing,  and  of  the  liability  of  cattle  to  be  upon 
it,  were  bound  to  keep  a  lookout,  rather  than  the  land-owner  to  keep  some  one 
constantly  upon  the  "  lookout."  In  the  case  of  Long  Island  Railw.,  3  Edw. 
Ch.  487,  the  Vice-Chancellor  seems  to  consider  that  a  railway  company  have  no 
interest  in  having  their  road  fenced,  and  are  not  therefore  bound  to  contribute  to 
the  expense  of  fencing,  which  is  at  variance  with  the  opinion  of  the  Chancellor 
(4  Paige,  553),  and  equally,  as  it  seems  to  us,  with  reason  and  justice.  See 
Campbell  v.  Mesier,  4  Johns.  Ch.  334.  In  a  case,  in  the  Supreme  Court  of 
Pennsylvania,  Sullivan  v.  Phila.  &  R.  Railw.,  6  Am.  Law  Reg.  342;  s.  c.  30 
Penn.  St.  234 ;  s.  c.  2  Redf.  Am.  Railw.  Cases,  564.  The  subject  of  the  duty 
of  railway  companies  to  fence  their  roads  for  the  security  of  passengers  is  dis- 
cussed, and,  as  it  seems  to  us,  many  sensible  and  practical  suggestions  made.  The 
general  and  correlative  duties  of  passenger  carriers  and  their  passengers  are 
thus  stated:  "The  carrier's  contract  with  his  passenger  implies:  first,  that  the 
latter  shall  obey  the  formers  reasonable  regulations ;  second,  that  the  carrier 
shall  have  his  means  of  transportation  complete  and  in  order,  and  his  servants 
competent.  If  a  passenger  be  hurt  without  his  own  fault,  this  fact  raises  a 
presumption  of  negligence,  and  casts  the  onus  on  the  carrier.  This  being  a  pre- 
sumption of  fact,  it  is  for  the  jury  to  determine.  It  is  no  answer  to  an  action  by 
a  passenger  against  a  carrier,  that  the  injury  was  caused  by  the  negligence  or 
even  trespass  of  a  third  person.     The  parties  are  bound  by  their  contract.'1 

Post,  §  192,  n.  6;  §  204  a. 

8  Hurd  v.  Rut.  &  Bur.  Railw.,  25  Vt.  116,  123;  New  York  &  Erie  Railw.  v. 
Skinner,  19  Penn.  St.  298;  Clark  v.  Syra.  &  Utica  Railw.,  11  Barb.  112;  Dean 
v.  The  Sullivan  Railw.,  2  Foster,  316;  A.  &  S.  Railw.  v.  Baugh,  14  111.  211. 
Where,  upon  appeal  from  the  first  appraisal  of  land  damages  where  the  erection 
of  fences  had  been  specified,  that  was  vacated,  and  the  new  appraisal  made  no 
such  requirement  of  the  company,  it  was  held  that  the  presumption  was,  that  the 
whole  damages  were  appraised  in  money,  and  the  company  were  not  bound  to 
build  fences."  Morss  v.  Boston  &  Maine  Railw.,  2  Cush.  536;  Williams  v.  New 
York  Central  Railw.,  18  Barb.  222.     It  seems  impossible  to  estimate  damages 

[*485-487] 


508  FENCES.  PART  V. 

view  is  probably  consistent,  in  principle,  with  the  cases  where 
Buch  a  duty  is  held  to  result  Prom  the  appraisal  of  land  damages, 
subject  to  the  expense  of  building  fences  being  borne  by  the  corn- 
pan  v.  or  where  the  assessment  specifically  includes  the  expense  of 
fencing,  and  that  has  not  been  paid.  And  in  the  Irish  courts  the 
company  is  only  bound  to  erect  such  accommodation  works  for  the 
benefit  of  the  land-owners  as  are  a  compliance  with  the  specifica- 
tions  in  the  award.  This  is  true  even  where  the  railway  crosses  a 
private  road  over  a  farm  in  the  right  of  some  third  party  as  lessee 
of  the  farm  obliquely,  and  the  award  adjudicating  the  claim  of 
such  lessee  specified  only  a  crossing  over  the  railway  as  a  "  level 
crossing"  at  a  given  point,  and  the  company  gave  a  crossing  at 
right  angles  with  the  road,  which  did  not  connect  the  termini  of 
the  road,  and  gave  no  access  to  it ;  it  was  nevertheless  held  that 
this  was  a  compliance  with  the  award.9  This  is  certainly  not  a 
fair  construction  of  the  award,  as  applicable  to  the  subject-matter ; 
and  it  does  not  require  any  gift  of  prophecy  to  foretell  that  the 
doctrine  of  *  the  case  will  not  be  followed  in  this  country,  and, 
with  deference  be  it  said,  it  ought  not  to  be  followed  anywhere. 

7.  And  in  some  of  the  states  the  rule  of  the  common-law,  in  regard 
to  the  duty  resting  upon  the  owner  of  domestic  animals  to  restrain 
them,  has  not  been  adopted  so  as  to  charge  the  owner  with  negli- 
gence for  suffering  them  to  go  at  large.10 

8.  But  it  is  held,  that  where  the  statute  imposes  upon  the  com- 

for.  taking  land  for  the  use  of  a  railway,  without  taking  into  the  account  the 
expense  of  fencing.  Henry  v.  Pacific  Railw.,  2  Clarke,  228  ;  Mil.  &  Mis.  Railw. 
v.  Eble,  4  Chandler  (Wis.),  72;  Northeastern  Railw.  v.  Sineath,  8  Rich.  185; 
Matter  of  Reuse.  &  Sar.  Railw.,  4  Paige,  533.  And  those  cases  which  hold  the 
company  not  bound  to  fence,  unless  required  to  do  so  by  statute  or  contract,  go 
upon  the  presumption  that  they  have  already  paid  the  expense  of  fencing  in 
tlie  land  damages.  See  Baltimore  &  Ohio  Railw.  v.  Lamborn,  12  Md.  257 ; 
-Mad.  &  Ind.  Railw.  v.  Kane,  11  Ind.  375;  Stucke  v.  Milw.  &  Miss.  R.  Co.,  9 
Wis.  202  :    Ki.liards  v.  Sacramento  Valley  R.  Co.,  18  Cal.  351. 

■  .Mann  v.  Great  Southern  &  Western  R.,  9  Irish  Com.  Law  R.  105. 

1  Kerwhacker  v.  C.  C.  &  Cincinnati  Railw.,  3  Ohio  (N.  S.),  172.  In  such 
cases  the  company  are  bound  to  use  reasonable  care  not  to  injure  animals  thus 
rightfully  at  large.  lb. ;  C.  C.  &  Cincinnati  Railw.  v.  Elliott,  4  Ohio  (N.  S.), 
474.  If  the  owner  is  to  be  charged  with  remote  negligence  in  suffering  his  cattle 
to  go  at  large,  under  such  circumstances,  and  the  servants  of  the  company  are 
guilty  of  want  of  care  at  the  time  of  the  injury,  which  is  the  proximate  cause 
of  it.  the  company  are  still  liable.  lb.;  Chicago  &  Miss.  Railw.*  v.  Patchin, 
16  111.  198 ;  Ind.,  &c.  Railw.  v.  Caldwell,  9  Ind.  397. 
[*488] 


§  127.  UPON    WHOM    THE    DUTY    RESTS.  509 

pany  the  duty  of  maintaining  fences  and  cattle-guards  at  farm- 
crossings,  and  provides  that  until  such  fences  and  cattle-guards 
shall  be  duly  made  the  corporation  and  its  agents  shall  be  liable 
for  all  damages  from  such  defect,  this  renders  a  lessee  of  the  road 
liable  fur  injury  to  cattle  caused  by  his  operating  it  without  proper 
cattle-guards  at  farm-crossings.11 

9.  A  general  statute,  requiring  fences  to  be  maintained  by  rail- 
ways upon  the  sides  of  their  road,  applies  to  land  acquired  by  pur- 
chase as  well  as  to  that  taken  in  invitum}2 

*  10.  And  the  statute,  requiring  farm-crossings  "  for  the  use  of 
proprietors  of  land  adjoining,"  has  no  reference  to  the  quantity 
of  land  to  be  accommodated,  but  only  that  the  crossing  must  be 
useful.12 

11.  Where  the  statute  requires  the  company  to  erect,  at  farm- 

11  Clement  v.  Canfield,  28  Vt.  302.  And  the  same  rule  applies  to  a  company- 
running  its  cars  over  another  company's  line  by  arrangement  between  the  com- 
panies. If  the  road  is  not  properly'  fenced,  the  company  running  the  trains  by 
which  the  damage  is  caused  will  be  responsible,  although  it  be  the  default  of  the 
other  company,  for  which  that  is  also  responsible  to  the  party  injured.  Illinois 
Central  Railw.  v.  Kanouse,  ,'39  111.  272.  An  order  upon  a  railway  for  making 
farm  accommodations  must  specify  the  time  within  which  they  shall  be  made. 
Keith  v.  The  Cheshire  Railw.,  1  Gray,  614.  And  where  the  act  allowing  a  rail- 
way company  to  lease  its  road  is  upon  the  express  condition  that  it  be  not 
thereby  exonerated  from  any  of  its  duties  or  liabilities,  this  must  include  the 
maintaining  of  fences.  Whitney  v.  Atl.  &  St.  Law.  Railw.,  44  Maine,  362. 
Where  a  railway  company  permits  its  cattle-guards  to  remain  filled  with  snow, 
so  that  cattle  which  have  strayed  upon  the  highway  without  any  negligence  on 
the  part  of  the  owner  pass  over  such  guards,  and  in  consequence  are  injured  by 
a  passing  train,  the  company  are  liable  for  the  damages.  Donnigon  v.  Ch.  & 
N.  W.  Railw.  Co.,  18  Wis.  28. 

'*  Clarke  v.  The  Rochester,  L.  &  N.  F.  Railw.,  18  Barb.  350.  A  fence  built 
in  zigzag  form  of  rails,  half  the  length  upon  the  land  taken  for  the  railway,  and 
half  upon  the  land  of  the  adjoining  proprietor,  is  a  compliance  with  the  statute 
requiring  the  fence  to  be  built  upon  the  side  of  the  road.  Ferris  v.  Van  Bus- 
kirk,  18  Barb.  3U7.  And  where  the  statute  provides  that,  upon  certain  pro- 
ceedings, railway  companies  may  be  compelled  to  provide  farm-crossings  and 
cattle  passes  for  the  owners  of  land  intersected  by  the  company's  road,  and  no 
such  proceedings  have  been  taken,  the  company  are  not  liable  to  an  action  for 
damages  resulting  from  the  want  of  necessary  farm-crossings  and  cattle  passes, 
unless  it  appears  that  the  company  had  contracted  to  build  them.  Horn  v. 
Atlantic  iV;  St.  Lawrence  Railw.,  35  N.  II.  169;  s.  c.  86  id.  440.  Where  the 
railway  company  contract  to  build  fences  and  farm-crossings,  this  obliges  them 
to  erect  bars  or  ^.ites  at  such  crossings,  as  required  by  statute.  Foler  v.  N.  V. 
Central  Railw.,  16  N.  Y.  476. 

[*489] 


;",10  FENCES.  PART  V. 

crossings,  liars  or  gates,  to  prevent  cattle,  &c,  from  getting  upon 
the  railway,  and  the  land-owner  who  is  entitled  to  such  protec- 
tion ictuses  to  have  such  bars  or  gates  erected,  or  requests  the 
company  not  to  erect  them,  or  undertakes  to  erect  them  himself, 
he  cannot  maintain  an  action  against  the  company  for  not  com- 
plying with  the  statute.13  A  court  of  equity  will  not  decree 
*  specific  performance  of  a  covenant  by  a  railway  company  to 
maintain  and  keep  in  repair  the  cattle-guards  on  the  line  of  plain- 
tiff's land.14  Nor  will  the  Court  of  Chancery,  upon  any  general 
right,  direct  that  farm-crossings,  agreed  to  be  built  by  a  railway 
company,  shall  be  made  under  its  direction,  or  at  its  discretion.15 

12.  Railways  are  not  bound  to  maintain  fences  upon  their  roads 
so  as  to  make  them  liable  to  their  owTn  servants  for  injuries  hap- 
pening in  consequence  of  the  want  of  such  fences.  And  where 
the  statute  makes  them  liable  for  all  injuries  done  to  cattle,  <fec, 
by  their  agents  or  instruments  until  they  fence   their   road,  the 

13  Tombs  v.  Rochester  &  Syracuse  Railw.,  18  Barb.  583.  But  where  the 
statute  requires  the  commissioners  to  prescribe  the  "time  when  such  works  are 
to  be  made,"  and  the  owner  has  the  right,  by  statute,  to  recover  double  damages, 
"by  reason  of  failure  to  erect  the  works,"  and  the  commissioners  failed  to  pre- 
set ibe  the  time,  no  action  will  lie.  Keith  v.  Cheshire  Railw.,  1  Gray,  614.  When 
the  .statute  requires  fences  to  be  maintained  by  railway  companies,  it  must  be 
done  before  they  begin  running  trains.  Clark  v.  Vermont  &  Canada  Railw.,  28 
Vt.  103.  And  in  Gardiner  v.  Smith,  7  Mich.  410,  it  was  held  to  attach  as  soon 
as  the  company  have  possession  of  the  land  for  construction.  Since  the  decision 
of  the  case  of  Clark  »."  Vt.  &  Canada  R.,  supra,  the  same  court  held,  that  during 
the  construction  of  a  railway,  the  company,  in  such  case,  were  bound,  either  by 
fences  or  other  sufficient,  means,  to  protect  the  fields  of  land-owners  adjoining 
the  railway.  And  whether  the  company  have  used  the  proper  precautions  to  pre- 
vent the  escape  of  the  land-owner's  cattle  or  the  intrusion  of  other  cattle,  during 
such  construction,  is  a  question  of  fact,  in  each  particular  case  to  be  determined 
by  the  jury.  Holden  v.  Rut.  &  Bur.  Railw.,  30  Vt.  297.  Where  the  contractor 
lor  building  a  railway  took  away  the  fences  in  course  of  construction,  and  the 
p  of  the  land-owner  escaped  thereby  and  were  lost,  he  was  held  responsible 
for  the  loss.  Gardiner  v.  Smith,  7  Mich.  410.  And  it  will  make  no  difference 
that  the  land-owner  turned  the  sheep  into  the  lot  after  the  land  was  taken  posses- 
sion of  by  the  contractor,  and  he  was  constantly  throwing  down  the  fences  to 
carry  forward  the  work.  lb.  But  a  railway  company  cannot  fence  their  road  by 
means  of  willows  set  upon  the  line  of  the  land  taken,  and  which  in  growing  will 
injure  the  adjoining  land  by  the  extension  of  their  roots,  there  being  no  control- 
ling necessity  of  fencing  in  that  mode.  The  company  were  accordingly  enjoined. 
Brock  v.  Conn.  &  Pass.  R.,  35  Vt.  373. 

"  Columbus  &  Shelby  Railw.  v.  Watson,  26  Ind.  50. 

15  Darnley  v.  London,  Chatham,  &  Dover  Railw.,  Law  Rep.  2  H.  Lds.  43. 
[*490] 


§  127.  UPON    WHOM    THE   DUTY    RESTS.  511 

liability    extends   only   to    the    owners    of    such    cattle    or   other 
animals,  and  this  liability  is  the  only  one  incurred.16 

13.  Where  the  statute  makes  railways  liable  for  cattle  killed  by 
them  without  reference  to  their  negligence,  all  that  is  necessary  to 
entitle  the  party  to  recover  is  to  show  the  fact  that  the  cattle  were 
killed  by  the  company  and  that  he  was  the  owner.17 

14.  And  where  it  is  the  duty  of  the  company  to  fence  the  land 
adjoining  their  road,  and  they  omit  to  do  so,  whereby  cattle  escape 
upon  the  track  and  are  killed,  they  are  liable  in  damages  without 
any  proof  of  care  on  the  part  of  the  owner  to  restrain  them.18 
And  evidence  of  notice  to  the  owner  that  the  animal  had  escaped 
two  or  three  times  before  and  had  been  upon  the  track,  is  imma- 
terial.18 But  where  the  duty  of  maintaining  fences  is  "upon  the 
land-owner,  and  cattle  escape  and  are  killed  upon  *  the  track,  the 
company  are  not  liable  without  proof  of  due  care  on  the  part  of 
the  owner  to  restrain  them.19  The  statute,  requiring  railways 
thereafter  constructed  to  fence  their  roads  on  both  sides,  does  not 
apply  to  a  road  in  the  process  of  construction  at  the  date  of  the  act.19 
The  statute,  requiring  railways  to  fence  their  roads,  and  making 
them  liable  for  injury  to  cattle  without  regard  to  the  negligence  of 
the  owner,  or  his  being  an  owner  of  adjoining  land,  is  a  police 
regulation.20  But  this  liability  does  not  extend  to  animals  injured 
by  fright.21 

16  Langlois  v.  Buffalo  &  Rochester  Railw.,  19  Barb.  364.  But  in  McMillan  v. 
Saratoga  &  Wash.,  20  Barb.  449,  it  is  conceded  the  company  would  have  been 
liable  to  the  representative  of  their  engineer,  who  was  killed  by  the  train  running 
upon  cattle  which  came  upon  the  track  through  defect  of  fences,  which  it  was  the 
duty  of  the  company  to  maintain,  if  they  had  been  shown  to  have  had  actual 
knowledge  of  such  defect  before  the  injury.     See  post,  §  131. 

17  Nashville  &  Ch.  Railw.  v.  Peacock,  25  Alabama,  229.  See  also  Williams 
v.  New  Albany  &  Salem  Railw.,  5  Ind.  Ill  ;  Lafayette  &  Ind.  Railw.  v.  Shriner, 
6  Ind.  141.  In  this  case  it  was  held,  that  such  a  statute  had  no  reference  to  the 
case  of  cattle  killed  at  a  road-crossing,  as  that  was  a  place  which  could  not  be 
protected  either  by  fences  or  cattle-guards. 

18  Rogers  v.  Newburyport  Railw.,  1  Allen,  16. 

19  Stearns  v.  Old  Colony  &  Fall  River  Railw.,  1  Allen,  493.  And  the  burden 
is  upon  the  plaintiff  in  an  action  against  a  railway  company  for  damages  caused 
by  defect  of  fences  on  its  line,  to  show  that  the  company  was  bound  to  maintain 
such  fences.     Baxter  v.  B.  &  W.  Railw.,  102  Mass.  383. 

20  Indianapolis  &  (J.  Railw.  v.  Townsend,  10  Ind.  38 ;  Jefferson  Railw.  v. 
Applegate,  id.  49;  Ind.  &  C.  R.  v.  Meek,  id.  502;  Jeff.  Railw.  v.  Dougherty, 
id.  549. 

21  Peru  Railw.  v.  Haskett,  10  Ind.  409.     And  the  company  are  not  liable  for 

[*491] 


512  FENCES.  PART  V. 

L5.  Railway  companies  are  not  liable  for  injuries  to  animals  at 
highway  crossings,  although  the  crossing  had  been  abandoned  by 
the  public  For  two  years  and  the  highway  changed,  it  not  appear- 
in--  to  have  been  vacated  in  the  mode  prescribed  by  statute,  so  as 
to  justify  the  company  in  fencing  their  track  across  it.22 

ltj.  Railway  companies  in  England  are  not  held  responsible  for 
injuries  to  cattle  transported  to  their  stations,  where  the  injury 
is  caused  by  their  escaping  upon  the  track  through  defects  of  the 
fence  about  the  cattle-yard  ;  nor  for  the  cattle  being  frightened  by 
one  of  the  porters  of  the  company  coming  out  of  the  station  into 
the  cattle-yard,  having  a  lantern,  such  as  was  ordinarily  used,  in  his 
hand  ;  it  being  no  evidence  of  negligence  on  the  part  of  the  com- 
pany's servants.23  It  was  considered  here  that  the  cattle  had  been 
delivered  to  the  plaintiff,  and  it  was  his  fault,  since  he  knew  the 
yard  was  not  fenced,  and  had  himself  pronounced  it  an  unsafe 
place,  not  to  guard  against  their  escape. 

17.  It  appeared  in  one  case24  that  the  plaintiff's  horse  had  es- 
caped *  in  the  night-time  from  his  pasture  upon  the  railway  track, 
on  account  of  the  want  of  proper  fence  along  the  line  of  the  road, 
and  was  found  in  the  morning  a  mile  from  the  plaintiffs  land  in 
a  rocky  pasture  seriously  injured  in  the  leg;  and  there  was  some 
evidence  tending   to  show   that  the  injury   was  received   in  the 

cattle  killed  in  the  highway  without  their  fault,  where  the  track  of  the  road  was 
fully  fenced.     Northern  Ind.  R.  v.  Martin,  10  Ind.  460. 
**  Indian.  Railw.  v.  Gapen,  10  Ind.  292. 

23  Roberts  v.  Great  Western  Railw.,  4  C.  B.  (N.  S.)  506.  Railway  compa- 
nies arc  not  bound  to  fence  their  depot  grounds.  Davis  v.  Bur.  &  Mo.  River 
Railw.,  26  Iowa,  549. 

24  Holden  v.  Rutland  &  Burlington  Railw.,  30  Vt.  297.  Where  the  plaintiff 
had  knowledge  at  evening  that  his  fence  was  in  danger  of  being  carried  off  by  a 
flood,  and  knew  his  cattle  would  in  consequence  be  liable  to  come  upon  the  rail- 
way track,  and  refused  to  remove  them  from  the  pasture,  and  before  morning 
the  fence  was  removed,  and  the  cattle  came  upon  the  track  and  were  killed  by  a 
passing  train,  it  was  held  the  plaintiff  could  not  recover.  Michigan,  &c.  R.  Co. 
v.  Shannon,  13  Ind.  171.  There  are  numerous  cases  in  this  state  where  matters 
of  practice  under  the  statute  of  that  state  are  discussed.  Wright  v.  Gossett,  15 
Ind.  119;  Ind.,  &c.  Railw.  v.  Fisher,  id.  203;  Same  v.  Kercheval,  16  id.  84; 
Ohio  &  Miss.  Railw.  Co.  v.  Quier,  id.  410.  See  also  19  id.  42;  20  id.  229;  23 
id.  438;  21  id.  139.  And  it  has  been  held  that  all  animals  killed  at  one  time 
constitute  a  separate  and  indivisible  cause  of  action,  and  two  of  these  cannot  be 
united  to  give  jurisdiction  to  the  Circuit  Court.  Ind.  &  Cin.  R.  Co.  v.  Kercheval, 
24  Ind.  139. 

[*492] 


§  127.  UPON    WHOM   THE   DUTY   RESTS.  513 

pasture  where  he  was  found.  The  court  charged  the  jury  that  if 
they  were  satisfied  there  was  a  clear  connection  between  the  es- 
cape of  the  horse  and  the  injury  received,  the  plaintiff  was  entitled 
to  recover.  This  was  held  erroneous  in  not  requiring  the  jury  to 
discriminate  between  a  direct  and  a  remote  connection  between  the 
neglect  of  the  company  and  the  damage  to  the  plaintiff's  horse,  as 
he  could  only  recover  upon  the  former  ground. 

18.  In  this  case  24  the  plaintiff's  cows  were  killed  by  escaping 
from  the  plaintiff's  pasture,  and  going  into  a  piece  of  land  leased 
by  the  plaintiff  to  the  defendants,  to  be  used  by  them  as  a  wood- 
yard,  and  from  that  upon  the  defendants'  track,  for  want  of  fence 
about  the  wood-yard.  The  evidence  left  it  doubtful  whether  the 
defendants  were  to  have  the  exclusive  occupancy  of  the  wood- 
yard,  or  were  to  fence  the  same,  as  between  them  and  the  plain- 
tiff: it  was  held  that,  in  order  to  recover  of  the  defendants  for 
killing  the  cows,  it  should  be  found  by  the  jury  that  it  was  the 
duty  of  the  defendants  to  maintain  the  fence  for  defect  of  which 
they  escaped  upon  the  defendants'  track. 

19.  The  statute  of  New  York,  requiring  railways  to  maintain 
cattle-guards  at  road-crossings,  applies  to  streets  in  a  village,  but 
not  so  as  to  impede  the  passage  along  the  streets,  or  render  them 
unsafe  for  persons  passing.25 

20.  It  has  often  been  declared  that  railway  companies,  to  relieve 
themselves  from  responsibility  for  damage  caused  by  their  trains 
to  domestic  animals,  must  not  only  build  but  maintain  in  good 
*  repair  all  fences  and  cattle-guards  required  of  them  by  law.-G 
If  such  structures  are  allowed  to  fall  into  decay,  or  are  acciden- 
tally thrown  open  or  thrown  down,  and  not  closed  and  restored 
within  a  reasonable  time,  the  company  are  responsible  to  the 
owner  of  cattle  injured  by  such  neglect,  provided  he  is  not  in  fault 
himself.-'1  But  even  where  such  fences  and  cattle-guards  are 
properly  maintained,  the  railway  companies  will  be  held  respon- 
sible for  all  damage  to  animals  caused  by  the  wilful  or  negligent 
conduct  of  their  agents  and  employes. 

21.  In  New  Hampshire  the  common-law  rule  of  responsibility  for 
damage  only  as  to  cattle  rightfully  in  the  adjoining  fields  is  main- 
tained in  regard  to  the  duty  of  railway  companies  to  fence  their 
traek,  ami  an  omission  of  this  duty  will  not  render  them  responsi- 

w  Brace  v.  N.  Y.  Central  Railw.  Co.,  l'7  X.  V.  269. 
26  McDowell  v.  N.  Y.  Central  Railw.,  :i7  Barb.  !!>■">. 
vol.  i.  33  [*493] 


.",1  [  FENCES.  PART  V. 

ble  for  :ui  injury  happening  to  cattle  trespassing  upon  the  track  or 
upon  the  lands  adjoining.27  It  is  here  held  that  railway  companies 
qoI  responsible  to  the  owner  of  lands  adjoining  their  track  for 
damage  done  upon  such  lands  by  cattle  suffered  by  their  owners 
to  run  at  large  in  the  highway,  and  thence  escaping  upon  the  rail- 
way track,  and  thus  coining  upon  such  adjoining  lands,  through 
defect  of  fences,  which  it  is  the  duty  of  the  company  to  maintain. 
But  this  seems  questionable.  We  should  have  said,  without 
much  examination  or  reflection,  that  although  the  owners  of  the 
cattle  are  clearly  responsible  for  all  such  damage,  it  is  not  quite 
certain  the  company  may  not  also  be  held  responsible  for  the  same 
damage  to  the  land-owner,  inasmuch  as  the  law  casts  upon  them 
the  duty  of  maintaining  the  fences  against  the  land,  and  the 
damage  occurred  in  consequence  of  the  omission.  But  the  court 
unquestionably  took  the  surest  course  to  visit  the  responsibility,  in 
the  first  instance,  where  it  ultimately  belongs.  It  is  here  further 
said  that  railways  are  bound  to  maintain  proper  cattle-guards  at 
farm-crossings,  and  are  responsible  for  all  damages  to  cattle  right- 
fully there  by  such  omission,  but  are  not  responsible  for  any  injury 
to  cattle  suffered  to  go  at  large  in  the  highway,  or  wrongfully  there 
for  any  cause,  although  such  injury  may  occur  by  reason  of  the 
omission  to  build  and  maintain  such  cattle-guards.28 

22.  A  railway  company  are  responsible  for  all  damage  done  to 
cattle  rightfully  in  lands  adjoining  the  railway  track  through  de- 
fect *  of  fences  which  the  company  are  bound  to  maintain  ;  and 
they  cannot  excuse  themselves  from  responsibility  by  showing 
that  the  road  is  operated  for  the  benefit  of  other  parties,  and 
especially  so  long  as  it  is  done  under  the  direction  and  control 
of  the  company.29 

The  building  of  fences  along  the  line  of  a  railway  track  is, 
do  doubt,  in  regard  to  the  security  of  travel  thereon,  to  be  regarded 
as  a  matter  of  police,  and  a  duty  which  the  companies  cannot  shift 
upon  others  by  contracts  to  maintain  such  fences.30  And  it  makes 
no  difference  by  whom  such  fences  were  built :  the  company  is 
bound  to  maintain  them  in  good  condition  at  all  times.31     But  it 

27  Chapin  r.  Sullivan  Railw.  Co.,  39  N.  H.  53. 
-■   Pot  '.  I  128,  pi.  7. 

29  Wyman  v.  Pen.  &  Ken.  R.  Co.,  46  Me.  162. 

30  New  Albany  &  Salem  R.  Co.  v.  Tilton,  12  Ind.  3;  Same  v.  Maiden,  id.  10. 
See  also  Illinois  Central  R.  Co.  v.  Swearingen,  33  111.  389. 

31  New  Albany,  &c.  Railw.  Co.  v.  Pace,  13  Ind.  411. 

[*494] 


§  127.  UPON    WHOM   THE   DUTY    RESTS.  515 

has  been  held  in  the  English  courts,82  that  the  statute  requiring 
the  companies  to  fence  their  roads,  as  between  them  and  the  land- 
owners, does  not  impose  any  duty  to  fence  them,  in  order  to  secure 
the  safety  of  passengers  ;  and  therefore  the  companies  may,  so  far 
as  the  statute  duty  is  concerned,  contract  with  the  land-owners  to 
maintain  the  fences  along  the  line,  and  will  thus  escape  responsi- 
bility under  the  statute.  And  it  is  further  held,  in  this  case,  that 
the  duty  of  railways  towards  their  passengers,  so  far  as  fencing 
their  roads  is  concerned,  as  at  common  law,  is  one  of  diligence,  in 
order  to  render  the  passing  of  trains  as  secure  as  practicable,  and 
does  not  amount  to  a  positive  warranty  to  keep  cattle  off  the  line,  or 
to  fence  the  same,  except  so  far  as  that  may  be  regarded  as  a  neces- 
sary precaution,  in  order  to  secure  safety  to  their  passengers,  under 
the  circumstances.  But  in  an  American  case,33  where  a  child 
eighteen  months  old  came  upon  the  track  of  a  railway,  through  de- 
fect of  fences  which  it  was  the  duty  of  the  company  to  build,  and 
was  injured  in  consequence,  it  was  held  that  a  child  so  young 
could  not  be  guilty  of  negligence,  and  that  the  omission  to  build 
the  fence  by  the  company  was  negligence,  and  made  the  company 
responsible. 

24.  A  land-owner,  who  by  contract  with  the  company  is  bound 
to  maintain  the  fences  through  his  land,  cannot  recover  of  the 
company,  for  damage  to  cattle  by  reason  of  defect  of  fences,  unless 
he  show  negligence  on  the  part  of  the  company.34  But  a  railway 
company  is  responsible  for  cattle  killed  by  their  trains  at  a  mere 
private  road-crossing,  which  was  not,  but  might  have  been,  easily 
fenced  by  them.35  This  case  was  controlled  by  the  statute.  A  suffi- 
cient fence  in  Indiana  is  held  to  be  such  an  one  as  good  husband- 
men usually  keep.36  But  in  many  of  the  states  what  shall  consti- 
tute legal  fences  is  defined  by  statute. 

25.  Railway  companies  are  not  responsible  for  damage  accruing 
to  domestic  animals  from  want  of  fences,  at  points  which  do  not 
properly  admit  of  being  fenced,  as  in  the  immediate  vicinity  of 

32  Buxton  v.  North  Eastern  Railw.,  Law  Rep.  3  Q.  B.  549;  ante,  §  126,  n.  82. 

33  Schmidt?;.  Milw.  &  St.  Paul  Railw.,  23  Wis.  186. 

34  Terre  Haute,  &c.  R.  Co.  v.  Smith,  16  Ind.  102. 

35  Ind.  Central  Railw.  v.  Leamon,  18  Ind.  173. 

36  Toledo  &  Wabash  Railw.  Co.  v.  Thomas,  18  Ind.  215.  If  such  a  fence  is 
maintained,  the  company  is  only  liable  as  at  common  law  for  negligence.  /'«.s/, 
pi.  34. 

[*4iMJ 


516  FENCES.  PART  V. 

engine-houses,  machine-shops,  car-houses  and  wood-yards.37  And 
where  the  fence  along  a  railway  line  is  destroyed  by  unavoidable 
accident,  as  by  fire,  and  is  repaired  in  a  reasonable  time,  but  in 
the  mean  time  cattle  get  at  large  by  reason  of  the  want  of  fence, 
and  are  injured,  the  company  will  not  be  held  responsible.38 

26.  By  statute  in  this  state  railway  companies  are  made  respon- 
sible *  for  animals,  but  not  for  persons,  injured  upon  their  roads, 
when  they  might  be,  but  are  not  fenced,  irrespective  of  the  ques- 
tion of  negligence.  But  when  a  proper  fence  is  maintained  in  all 
places  where  it  is  required  to  be,  the  company  are  not  responsible 
for  animals  injured,  except,  as  at  common  law,  where  there  is 
negligence  on  their  part  conducing  to  the  result,  and  none  on 
the  part  of  the  owner  of  that  character.39 

27.  The  requirements  of  railway  companies  as  to  fencing  their 
roads  are  not  intended  exclusively  for  the  protection  of  domestic 
animals,  but  also  for  the  security  of  travel  and  transportation,  and 
where  the  fence  is  thrown  down  by  third  persons  without  the  knowl- 
edge of  the  company  that  it  is  down,  and  cattle  stray  upon  the  track 
and  receive  injury,  the  company  is  not  responsible  for  the  damage.40 

28.  Where  the  plaintiff  is  guilty  of  negligence  which  immediately 
and  directly  contributes  to  the  injury  of  cattle,  he  cannot  recover 
of  a  railway  company,  unless  by  the  exercise  of  ordinary  care  and 
prudence  at  the  time  the  company  might  have  avoided  inflicting 
the  injury.41 

29.  Where  the  railway  company  stipulated,  with  an  adjoining 
land-owner,  to  construct  five  "  cow-pits"  or  cattle-guards  upon  his 
land,  but  did  it  in  so  imperfect  a  manner  as  to  be  of  no  value,  and 
the  land-owner  brought  suit  for  the  breach  of  contract,  it  was  held 
he  could  only  recover  such  damage  as  he  had  sustained  up  to  the 
time  of  bringing  the  action,  unless  where  he  had  himself  con- 

■~  Iinl.  &  (in.  Railw.  Co.  v.  Oestel,  20  Ind.  231;  Galena  &  Chicago  Union 
I.'.  I  ...  v.  Griffin,  31  111.  303. 

oledo  &  Wabash  R.  Co.  v.  Daniels,  21  Ind.  256;  Ind.,  Pitts.  &  Clev.  R. 
Co.  v.  Truitt,  24  id.  162. 

yer  o.  St.  Louis,  Alton,  &c.  Railw.  Co.  22  Ind.  26 ;  McKinley  v.  Ohio, 
&c.  Railw.  <  !o.,  id.  99,  where  it  is  held  it  will  make  no  difference  as  to  the  re- 
Bponsibility  of  the  company  that  the  road  is  operated  by  a  receiver. 
'    Toledo,  &c.  Railw.  v.  Fowler,  22  Ind.  316. 
41  Ind.,  &c.  Railw.  v.  Wright,  22  Ind.  376. 

[*495] 


§  127.  UPON    WHOM   THE   DUTY   RESTS.  517 

structed  the  cattle-guards  in  a  proper  manner,  when  he  might  also 
recover  the  expense  of  such  construction.42 

30.  Where  bars  are  erected  at  a  farm-crossing  at  the  request  of 
the  land-owner,  it  is  his  duty  to  keep  them  up  ;  and  if  he  fails  to 
do  so,  whereby  his  own  cattle  or  those  of  third  persons  straying 
into  his  field  get  upon  the  track  and  are  injured,  the  owners  of 
such  cattle  cannot  recover  of  the  company  if  guilty  of  no  default 
at  the  time  of  the  injury.43 

*  31.  A  railway  running  along  the  line  of  a  highway  is  required 
to  be  fenced  with  especial  care  and  watchfulness.44  But  where  an 
animal  passes  upon  the  track  of  a  railway  at  the  crossing  of  a  high- 
way, where  it  would  not  be  proper  nor  practicable  to  make  any 
effectual  fence  or  cattle-guards,  and  is  injured,  the  company  is  not 
responsible  unless  in  fault  in  the  management  of  the  train  at  the 
time.45  And  it  was  here  considered  that  notwithstanding  the  facts 
that  the  plaintiff  was  guilty  of  negligence  in  permitting  the  animal 
to  stray  upon  the  track,  and  was  not  an  adjoining  proprietor,  he 
might  recover  for  an  injury  thereto  by  the  cars  of  a  railway  com- 
pany if  their  track  was  not  fenced.  But  where  the  owner  of  a 
blind  horse  turned  him  out  upon  the  common  of  a  town,  through 
which  a  railway  ran,  where  he  was  killed  by  a  passing  train,  and 
the  track  was  not  fenced,  it  was  held  he  could  not  recover,  on 
account  of  his  own  gross  negligence.46 

32.  In  actions  against  railway  companies,  under  the  statute,  for 
injury  to  domestic  animals,  it  should  appear  affirmatively  that  the 
case  comes  within  the  provisions   of  the   statute.     Thus  where 

42  Indiana  Central  Railw.  v.  Moore,  23  Ind.  14. 

43  Indianapolis  R.  Co.  v.  Adkins,  23  Ind.  340.  See  also  Eames  v.  Boston  & 
Worcester  Railw.,  14  Allen,  151.  In  this  case  the  company  erected  bars  for  the 
accommodation  of  the  land-owner,  and  the  animal  killed  escaped  upon  the  track, 
by  the  bars  being  Left  down,  and  afterwards  passed  upon  the  adjoining  lot,  and 
then  upon  the  railway  again,  it  not  appearing  precisely  how.  The  court  held, 
the  owner  could  not  recover  without  showing  the  bars  were  down  without  his 
fault,  or  else  that  the  animal,  alter  leaving  the  track,  came  upon  it  again  through 
the  fault  of  the  company. 

44  Ind.  &  Cin.  R.  Co.  v.  Guard,  24  Ind.  222;  Same  v.  McKinney,  id.  283. 

45  Ind.  &  Cin.  R.  Co.  v.  McKinney,  24  Ind.  283. 

46  Knight  v.  Toledo  &  Wabash  R.  Co.,  24  Ind.  402.  A  railway  company  is 
not  bound  to  resort  to  any  extraordinary  means  to  insure  the  fence  being  kept 
up  along  its  line  night  and  day;  reasonable  diligence  is  all  that  is  required. 
Illinois  Central  Railw.  v.  Dicker  son,  27  111.  66;  Same  v.  Phelps,  29  id.  417; 
Same  v.  Swearingen,  33  id.  289. 

[*496] 


5 1  8  FENCES.  PART  V. 

railways  are  required  to  fence  their  roads  within  six  months  after 
opening  them  for  use,  on  penalty  of  being  responsible  for  all  cattle 
injured,  it  should  appear,  in  an  action  for  injury  by  reason  of  such 
omission,  that  the  six  months  had  expired.47  So  if  it  is  claimed  that 
the  injury  occurred  by  reason  of  the  omission  to  fence,  it  should 
appear  that  it  occurred  at  a  point  in  the  road  where  the  company 
were  not  excused  from  fencing.48  To  constitute  a  town  or  village 
within  the  statute  it  is  not  requisite  there  should  be  any  plot  of  the 
same,  indicating  streets,  <fec,  in  the  manner  provided  by  statute.48 

>.  An  owner  of  mules  killed  upon  the  track  of  a  railway  by  an 
engine  and  cars,  cannot  recover  therefor,  even  where  they  escaped 
from  a  properly  fenced  enclosure  without  his  knowledge,  and  were 
on  the  highway  at  its  intersection  with  the  railway.49 

3-4.  There  seems  to  be  some  conflict  in  the  decisions  in  regard 
to  the  kind  of  fence  the  railways  are  required  to  maintain.  The 
natural  conclusion  upon  this  point  would  be  that  it  should  be  such 
fence  as  the  statute  makes  legal  fence  in  other  cases ;  and  some  of 
the  courts  adopt  this  rule.50  But  in  others  it  seems  to  have  been 
held  this  is  not  indispensable.61 

47  Ohio  &  Miss.  R.  Co.  v.  Meisenhiemer,  27  111.  30;  Same  v.  Jones,  id.  41. 

48  Illinois  Central  Railw.  Co.  v.  Williams,  27  111.  48. 

49  North  Penn.  Railw.  Co.  v.  Rehmon,  4"9  Penn.  St.  101. 

50  Enright  v.  San  Fr.  &  San  J.  Railw.,  33  Cal.  230. 

51  Eames  v.  Salem  &  Lowell  Railw.,  98  Mass.  560;  Ch.  &  Alt.  Railw.  v. 
Utley,  38  111.  410.  The  statute  requiring  railways  to  be  fenced  is  peremptory, 
and  the  exercise  of  ordinary  care  in  maintaining  fences  will  not  excuse  any  defects 
found  in  the  fence.     Antisdel  i>.  Ch.  &  N.  W.  Railw.,  26  Wis.  145. 

[*497] 


128. 


AGAINST   WHAT   CATTLE   BOUND   TO    FENCE. 


519 


SECTION     II. 


Against  what  Cattle  the  Company  is  bound  to  fence. 


1.  At  common  law  <  very  owner  bound  to  re- 

strain his  own  cattle. 

2.  And  if  bound  to  fence  against  others'  land, 

it  extends  only  to  those  cattle  rightfully 
upon  such  land. 

3.  Company  may  agree  with  land-owner  to 

fence,  and  this  will  excuse  damage  to 
cattle, 
n.  5.  Review  of  cases  upon  this  subject. 

4.  Owner  may  recover  unless  guilty  of  express 

neglect. 


5.  Comment  upon  the  last  cast . 

6.  Statement  of 'case  in  Massachusetts. 

7.  Further  comment  on  the  last  cast . 

8.  Ride  of  responsibility  as  held  in  Ken- 

tucky, 

9.  Rule  laid  down  in  Ohio. 

10.  Rule  in  Indiana. 

11.  Distinction  bet  men  sujf'crin;/  cattle   to  go 

at  large  and  accidental  escape. 


§  128.  1.  At  common  law  the  proprietor  of  land  was  not  obliged 
to  fence  it.  Every  man  was  bound  to  keep  his  cattle  upon  his 
own  premises,  and  he  might  do  this  in  any  manner  he  chose.1 

2.  And  where,  by  prescription  or  contract,  or  by  statute,  a 
land  proprietor  is  bound  to  fence  his  land  from  that  of  the 
adjoining  proprietor,  it  is  only  as  to  cattle  rightfully  in  such 
adjoining  land.2  The  same  rule  has  been  extended  to  railways.3 
And  it  has  been  considered  in  some  cases  that  where  no  statute, 
in  terms,  imposes  upon  railways  the  duty  of  fencing  their  roads, 
that  they  are  not  bound  to  fence,  and  that  the  owner  of  cattle  is 
*  bound  to  keep  them  off  the  road,  or  liable  to  respond  in  damages 
for  any  injury  which  may  be  caused  by  their  straying  upon  the 

1  Dovaston  v.  Payne,  2  H.  Bl.  527 ;  Rust  v.  Low,  6  Mass.  90,  99 ;  Jackson  v.  Rut. 
&  Bur.  Railw.,  25  Vt.  157,  158;  s.  c.  1  Redf.  Am.  Railw.  Cases,  362;  Wells  v. 
Howell,  19  Johns.  385;  Manchester,  Sh.  &  Lincolnsh.  Railw.  v.  Wallis,  14  C.  15. 
24:1 ;  s.  c.  25  Eng.  L.  &  Eq.  o7;>  ;  Morse  v.  Rut.  &  Bur.  Railw.,  27  Yt.  49 ;  Lafayette 
&  Ind.  Railw.  v.  Shriner,  6  Porter  (Ind.),  141 ;  Woolson  v.  Northern  Railw.,  19 
N.  H.  267  ;  Indianapolis  &Cin.  Railw.  v.  Kinney,  8  Ind.  402.  But  in  Pennsylvania 
the  common-law  rule  in  regard  to  keeping  one's  cattle  at  home  is  reversed  by 
statute,  and  improved  lands  must  lie.  fenced  in  order  that  the  owner  may  recover 
for  damages  done  by  .-tray  cattle.    Gregg  v.  Gregg,  25  Legal  Intel.  372,  Nov.  '68. 

2  Same  cases  above;  Lord  v.  Wormwood,  2'.)  Maine,  282;  Bemis  v.  C.  A:  1'. 
Railw.,  42  Vt.  375. 

3  Kicketts  v.  East  &  \Yest  India  Docks  &  Birmingham  J.  Railw.,  12  (  .  B. 
161;  s.  c.  12  Eng.  L.  &  Eq.  620;  Dawson  v.  Midland  Railw.,  21  W.  R.  56; 
Perkins  v.  Eastern  Railw.  Co.,  29  Maine,  .'107;  Towns  v.  Cheshire  Railw.,  1 
Foster,  363  ;  Cornwall  v.  Sullivan  Railw.,  8  Foster,  161. 

[*498] 


FENCES.  PART  V. 

r:\il\vav.1  and  as  a  necessary  consequence  cannot  recover  for  any 
damage  which  may  befall  them.5 

."..  Bui  where  a  railway  is  not  obliged  to  fence  unless  requested 
*  by  the  landowner,  and  had  agreed  with  such  owner  that  they 
should  not  fence  against  his  land,  and  a  cow  placed  in  such  lands 
strayed  upon  the  track  of  the  road,  and  was  killed  by  a  train,  it 

1  Vandegrifi  o.  Rediker,  2  Zab.  185;  Tonawanda  Railw.  v.  Munger,  5  Denio, 
255  ;  B.  C.  affirmed  in  error,  4  N.  Y.  349 ;  Clark  v.  Syracuse  &  Utica  Railw.,  11 
Bail).  11"-':  Williams  v.  Mich.  Central  Railw.,  2  Mich.  259;  New  York  &  Erie 
Railw.  v.  Skinner,  19  Penn.  St.  298;  May  berry  v.  Concord  Railw.,  47  N.  H. 

S91. 

5  Brooks  v.  New  York  &  Erie  Railw.,  13  Barb.  594.  In  this  case  it  was  held 
that  the  statute  requiring  railways  to  maintain  cattle-guards  at  road-crossings  did 
not  extend  to  farm-crossings.  So  too  it  has  been  held  that  the  statute  requiring 
gates  or  rattle-guards  at  road-crossings  does  not  extend  to  street-crossings. 
Vanderkar  v.  Rensselaer  &  Sara.  Railw.,  13  Barb.  390.  In  Central  Military 
Track  Railw.  v.  Roekafellow,  17  111.  541,  the  rule  is  laid  down  in  regard  to  cattle 
Straying  upon  a  railway,  that  they  are  to  be  regarded  as  wrongfully  upon  the 
road,  and  the  owner  cannot  recover  for  an  injury;  unless  caused  by  wilful  mis- 
conduct or  gross  negligence.  The  court  say,  "  A  railroad  company  has  a  right 
to  run  its  cars  upon  its  track  without  obstruction,  and  an  animal  has  no  right 
npon  the  track  without  consent  of  the  company,  and  if  suffered  to  stray  there,  it 
is  at  the  risk  of  the  owner  of  the  animal."  And  in  Illinois  Central  Railw.  v. 
l;  edy,  17  111-  580,  the  same  court  say,  "  Animals  wandering  upon  the  track  of 
an  unenclosed  railroad,  are  strictly  trespassers,  and  the  company  is  not  liable  for 
their  destruction,  unless  its  servants  are  guilty  of  wilful  negligence,  evincing 
reckless  misconduct.11  —  "  The  burden  of  proof  is  on  the  plaintiff  to  show  negli- 
gence;  the  mere  fact  that  the  animal  was  killed  "  is  not  enough.  In  Munger  v. 
Tonawanda  Railw.,  4  N.  Y.  349,  it  is  held,  that  cattle  escaping  from  the  enclos- 
ure of  the  owner  and  straying  upon  the  track  of  a  railway,  are  to  be  regarded 
as  trespassers,  and  no  action  can  be  maintained  against  the  company  if  the  negli- 
gence of  the  plaintiff  concurred  with  that  of  the  company  in  producing  an  injury 
to  the  cattle  while  in  that  situation  ;  and  that  the  law  charges  the  owner  of  cattle, 
in  such  case,  with  negligence,  although  his  enclosures  are  kept  well  fenced,  and 
he  is  guilty  of  no  actual  negligence,  in  suffering  the  cattle  to  escape.  And  it 
was  accordingly  held,  that  the  company  was  not  liable,  under  such  circumstances, 
for  negligently  running  an  engine  upon  and  killing  the  plaintiff's  cattle.  The 
same  principles  substantially  are  maintained  in  the  same  case,  5  Denio,  255.  And 
it  is  further  held  here,  that  where  the  general  statutes  of  the  state  allow  towns 
to  prescribe  what  shall  be  a  legal  fence,  and  when  cattle  may  run  at  large  in 
the  highway,  and  which  forbid  a  recovery  for  a  trespass  by  cattle  lawfully  in  the 
highway,  by  one  whose  fences  do  not  conform  to  the  town  ordinance  upon  the 
.subject,  this  will  have  no  application  to  railways,  and  that  cattle  allowed  to  run 
in  the  highway  by  such  ordinance,  and  which,  while  so  running  in  the  highway, 
enter  upon  tin-  lands  of  a  railway  at  a  road-crossing,  where  there  is  no  obstruc- 
tion against  the  intrusion  of  cattle,  are  to  be  regarded  as  trespassers. 

[*499] 


§  128.  AGAINST    WHAT   CATTLE   BOUND   TO    FENCE.  521 

was  held  the  owner  of  the  cow,  having  by  his  own  fault  contributed 
to  the  loss,  could  not  recover  of  the  company.6 

4.  Iu  a  case  in  Connecticut,"  it  was  decided  that  where  cattle 
are  at  large  without  the  fault  of  the  owner,  and  go  upon  the  track 
of  a  railway,  and  are  injured  through  the  negligence  of  the  com- 
pany in  the  management  of  their  train,  the  owner  is  not  pre- 
cluded from  recovering  damages,  because  the  cattle  were  tres- 
passers upon  the  railway.  In  order  to  preclude  the  plaintiff 
from  recovery  in  such  case,  he  must  have  been  guilty  of  express 
and  not  merely  of  constructive,  wrong  in  suffering  the  cattle  to  go 
at  large. 

5.  We  could  not  dissent  from  the  propositions  maintained  in  the 
preceding  case,  notwithstanding  some  hesitation  in  regard  to  the 
proper  construction  placed  by  the  court  upon  the  facts  found  in 
the  case.  The  law  of  every  case  must  be  judged  of  by  the  facts 
which  the  court  assume  to  be  established  in  deciding  it.  It  would 
be  as  unfair  to  criticise  the  decision  of  a  court,  upon  a  new  con- 
struction of  the  facts,  as  it  would  upon  a  different  state  of  the  testi- 
mony at  a  different  trial.     The  decision  of  a  court  is  good  or  bad 

6  Tower  v.  Providence  &  Worcester  Railw.,  2  Rhode  Island,  404.  See  also 
Illinois  Central  Railw.  v.  Whalen,  42  111.  396.  But  in  cases  where  the  railway 
contracts  to  build  the  fences,  the  owner  of  the  remaining  land  cannot  justify  turn- 
ing in  his  cattle  until  they  are  built,  and  if  he  do,  cannot  recover  for  any  injury 
they  may  sustain.  He  should  first  build  the  fence  and  recover  the  expense  of 
the  company.  Drake  v.  Phil.  &  Erie  Railw.,  51  Penn.  St.  240.  But  some  of  the 
cases  seem  to  take  a  different  view  of  the  right  of  the  land-owner  to  turn  in  his 
cattle.     Fernow  v.  Dubuque  &  So.  W.  Railw.,  22  Iowa,  528. 

7  Isbell  v.  New  York  &  New  H.  Railw.  Co.,  27  Conn.  393 ;  s.  C.  2  Redf.  Am. 
Railw.  Cases,  474.  The  courts  in  Indiana,  in  hearing  cases  in  error,  feel  bound  to 
presume  that  the  court  below  applied  the  testimony  correctly  in  determining  locali- 
ties and  geographical  boundaries,  and  especially  in  matters  affecting  jurisdiction, 
as  the  local  courts  would  more  naturally  understand  these  questions  than  another 
less  familiar  with  the  facts.  Ind.,  &c.  Railw.  Co.  v.  Moore,  1(>  End.  43;  Same  v. 
Snelling,  id.  435.  By  the  law  of  Indiana,  before  the  statute  of  1859,  it  must  appear, 
in  order  to  recover  damages  for  animals  killed  or  injured  by  a  railway  company, 
that  it  occurred  through  the  negligence  of  the  company,  and  without  the  imme- 
diate fault  of  the  owner.  Wright  v.  Ind.,  &c.  Railw.  Co.,  18  Ind.  168;  Toledo 
&  Wabash  Railw.  Co.  v.  Thomas,  id.  215.  The  act  of  1859  is  prospective  only. 
Ind.,  &c.  Railw.  Co.  v.  Elliott,  20  id.  430.  It  was  here  made  a  question  whether 
a  statute  awarding  damages  to  the  owners  of  animals  killed  or  injured  by  the 
rolling  stock  of  any  railway,  applied  equally  to  freight  as  to  passenger  trains, 
and  it  was  held  that  it  did.  The  wonder  is  that  any  such  question  should  ever 
be  made.     We  never  before  supposed  there  could  be  any  doubt  in  regard  to  it. 

[*499] 


522  FENCES.  PART  V. 

upon  the  facts  assumed  by  the  judge,  and  no  fair-minded  man  will 
attempt  to  escape  from  the  weight  of  an  authority  by  assuming  or 
•even  proving,  that  the  judge  took  a  mistaken  view  of  the  facts. 
It  is  merely  an  attempt  to  balance  one  assumed  blunder  of  the 
court,  by  showing  that  they  fell  into  another  in  an  opposite  direc- 
tum. A  decision  is  good  upon  the  ground  upon  which  it  is  placed, 
or  it  is  wrong  upon  every  ground. 

6.  We  have  said  thus  much  in  order  to  state  that  the  case  of 
Browne  v.  Providence,  Hartford,  and  Fishkill  Railway  Company,8 
which  decides  that  a  railway  corporation,  which  is  obliged  by  law 
to  make  all  needful  fences  and  cattle-guards  upon  the  sides  of  its 
track,  is  liable  for  injuries  by  its  engines  to  cattle  straying  at  large 
through  the  land  of  a  stranger  upon  its  road,  by  reason  of  its  neg- 
ligence in  not  erecting  fences  and  cattle-guards  as  required  by 
statute,  seems  clearly  to  have  assumed  a  different  rule  of  respon- 
sibility, as  against  railway  companies,  from  that  which  has  ordina- 
rily been  before  applied  to  all  lawful  business,  as  between  adjoining 
proprietors.  Indeed  the  court  distinctly  assume  the  position,  that 
the  common-law  responsibility  imposed  upon  adjoining  land-owners 
is  not  sufficient,  and  that  railway  companies  must  be  held  to  a 
higher  degree  of  responsibility,  "  on  account  of  the  new  circum- 
stances and  condition  of  things  arising  out  of  the  general  introduc- 
tion  and  use  of  railways  in  the  country,"  and  that  the  requirements 
of  the  railway  companies  in  regard  to  fencing  and  cattle-guards 
"  were  designed  for  the  safety  of  the  public,  and  for  the  protection 
of  all  domestic  animals,  whether  rightfully  or  wrongfully  out  of 
their  owners'  enclosure." 

7.  This  decision  certainly  has  the  credit  of  meeting  the  question 
involved  fairly  and  of  wrestling  manfully  with  its  difficulties,  and 
of  placing  it  upon  the  only  plausible  ground,  that  the  business  was 
so  dangerous  to  the  public  that  it  merited  a  more  extended  con- 
struction, where  railways  are  required  to  fence  their  roads,  than 
where  other  land-owners  were  required  to  do  the  same  thing.  We 
had  always  supposed  that  railways  were  required  to  fence  their 
roads  for  the  protection  of  their  passengers,  and  of  persons  and 
animals  rightfully  in  the  highway  or  the  adjoining  lands.  And  we 
have  yet  to  learn  any  sound  principle  upon  which  they  can  fairly 
be  required  to  guard  against  injuries  to  persons  or  animals  wrong- 

8  12  Gray,  55 ;  ante,  §  127,  pi.  21,  and  notes. 
[*500] 


§  128.  AGAINST   WHAT   CATTLE   BOUND   TO   FENCE.  523 

fully  upon  their  track,  by  making  permanent  erections  to  preclude 
such  persons  or  animals  from  coming  there.  It  is  true,  unques- 
tionably, that  railway  companies,  in  common  with  all  others,  are 
*  bound  to  avoid  doing  an  injury  to  any  one*  if  it  can  be  avoided  at 
the  time,  whether  such  person  or  his  property  be  rightfully  or 
wrongfully  in  their  way ;  but  that  this  duty  extends  to  previous 
precautions  against  doing  injuries  to  persons  wrongfully  upon  their 
track,  either  personally  or  by  their  property,  is  more  than  can 
fairly  be  maintained,  as  it  seems  to  us,  unless  railways  are  to 
be  outlawed  in  this  respect.  Every  one  in  the  exercise  of  a  law- 
ful business  has  the  right  to  expect  and  to  conduct  his  business 
upon  the  expectation  that  others  will  also  perform  their  duty,  and 
if  they  do  not,  that  they  will  be  required  by  the  administrators  of 
the  law  to  take  the  natural  consequences  of  such  neglect,  provided 
that  even  when  in  fault,  in  exposing  themselves  or  their  property 
to  damage  and  loss,  from  the  lawful  pursuit  of  lawful  business  by 
others,  they  be  not  wantonly  damaged  by  such  others,  but  only 
from  necessity.  And  this  is  all  which  we  understand  to  have  been 
decided  by  the  case  of  Isbell  v.  New  York  and  New  Haven  Railway 
Company.7  And  in  the  later  case  in  Massachusetts,9  Chapman,  J., 
seems  to  assume  the  same  ground,  and  it  is  the  only  one  in  our 
judgment  fairly  maintainable. 

8.  A  railway  company  which  is  not  bound  to  fence  its  track  is 
not  liable  for  injuries  inflicted  by  its  engines  and  trains  upon  cat- 
tle straying  upon  the  track  of  the  road,  unless  such  injury  was 
caused  by  the  wanton  and  reckless  negligence  of  the  company 
through  its  agents  and  servants.10 

9.  It  was  held  in  Ohio,11  where  a  land-owner  granted  to  the 
company  the  right  of  way  of  a  given  width,  and  covenanted  to 
maintain  the  fences  on  both  sides,  and  subsequently  conveyed  the 
land,  that  the  grantee  of  the  land  was  so  far  affected  by  his  grantor's 
covenant  to  maintain  the  fences  on  the  line  of  the  railway  that  he 
could  not  visit  any  consequences  upon  the  company  resulting  from 
its  not  being  performed,  but  must  bear  them  himself. 

10.  Where  the  owner  of  cattle  was  not  in  the  habit  of  suffering 
his  cattle  to  go  at  large  on  the  railway  track,  and  was  not  in  a 

9  Rogers  v.  Newburyport  Railw.  Company,  1  Allen,  16. 
19  Lou.  &  Frankfort  R.  Co.  v.  Ballard,  2  Met.  (Ky.)  177. 
11  Easter  v.  Little  Miami  R.  Co.,  14  Ohio  (N.  S.),  48.     See  also  MeCool  v. 
Galena  &  Chicago  Union  R.  Co.,  17  Iowa,  461. 

[*501] 


524  FENCES.  PART  V. 

position  to  take  any  steps  to  avert  the  danger  they  might  be  in 
from  the  passing  trains  of  the  company,  the  presence  of  the  cat- 
tle *upon  the  track  will  be  regarded  as  accidental,  and  at  most 
they  will  be  deemed  but  as  trespassers,  and  be  presumed  to  have 
escaped  through  the  insufficiency  of  fences,  and  the  owner  liable  for 
any  damage  they  might  cause.  But  if  the  servants  of  the  company 
used  no  means  to  avoid  killing  the  cattle,  and  manifested  such 
indifference  to  consequences,  such  a  degree  of  rashness  and  wan- 
tonness as  evinced  a  total  disregard  for  the  safety  of  the  cattle, 
and  a  willingness  to  destroy  them,  although  the  destruction  may 
not  have  been  intentional,  in  justice  and  upon  principle  the 
company  should  be  held  responsible  for  the  damages,  unless  it 
appear  that  the  owner  was  equally  in  fault.12  The  simple  killing 
of  an  animal  by  a  railway  company's  train  is  prima  facie  evidence 
of  negligence  on  the  part  of  their  engineer.12 

11.  In  one  case  13  it  was  held  that  the  negligence  on  the  part  of 
the  owner  of  cattle,  which  shall  preclude  his  recovery  for  an  injury 
to  them  by  a  railway  train,  must  depend  more  upon  its  degree 
than  upon  the  time  when  it  occurs  ;  and  a  distinction  in  this  re- 
spect should  be  made,  between  one  who  suffers  his  cattle  knowingly 
to  go  at  large  where  they  will  naturally  be  exposed  to  passing 
trains  upon  a  railway,  and  cases  where  the  cattle  get  at  large  with- 
out the  owner's  knowledge,  through  defect  of  fences  or  their  being 
temporarily  thrown  down. 

12  Indianapolis,  &c.  R.  Co.  v.  Meek,  10  Ind.  502. 

13  C.  H.  &  N.  W.  R.  Co.  v.  Goss,  17  Wis.  428.  All  questions  of  negli- 
gence, where  there  is  any  uncertainty  in  the  facts  must  be  submitted  to  the  jury 
under  proper  instructions.  Congor  v.  Galena,  &c.  U.  R.  Co.,  id.  477.  We 
have  discussed  this  question  in  Briggs  v.  Taylor,  28  Vt.  180,  184 ;  s.  c.  2  Redf. 
Am.  Railw.  Cases,  558. 

[*502] 


PART    VI. 

THE     LAW     OF     AGENCY     AS     APPLIED     TO 
RAILWAYS. 


PART   VI. 

THE     LAW     OF     AGENCY     AS     APPLIED     TO 
RAILWAYS. 


CHAPTER     XX. 


LIABILITIES    IN    REGARD   TO    CONTRACTORS,    AGENTS,    AND    SUB-AGENTS. 

SECTION    I. 
Liability  for  Acts  and  Omissions  of  Contractors  and  their  Agents. 


1.  Company  not  ordinarily  liable  for  the  act 

of  the  contractor  or  his  servant. 

2.  But  if  the  contractor  is  employed  to  do  the 

very  act,  company  is  liable. 

3.  American  courts  seem  disposed  to  adopt 

the  same  rule. 

4.  Distinction  attempted  between  liability  for 

acts  done  upon  movable  and  immovable 
property  not  maintainable. 

5.  Cases  referred  to  where  true  grounds  of 

distinction  are  stated. 

6.  Nop  id  of  distinction  in  regard 

to  mode  of  employment. 

7.  Pro]>er  basis  of  company's   liability   ex- 

plained. 


8.  So  long  as  one  retains  control  of  work  he 

is  responsible  for  the  conduct  of  it. 

9.  A  master  workman  is  only  responsible  for 

the  faithfulness  and  care  of  his  ivork- 
men,  in  the  business  of  their  employ- 
ment. 

10.  Railway  company  responsible  for  injuries 

conserpient  upon  defects  of  construction, 
in  the  course  of  the  work  by  a  con- 
tractor. 

11.  But  ordinarily  the  employer  is  not  respon- 

sible for  the  negligent  modi  in  which 
work  is  done,  the  contractor  bring  only 
<ni ployed  to  do  it.  in  a  lawful  and  rea- 
sonable manner. 


§  129.  1.  The  general  doctrine  seems  now  firmly  established,  that 
the  company  is  not  liable  for  the  act  of  the  contractor's  servant, 
where  the  contractor  has  an  independent  control,  although  subor- 
dinate, in  some  sense  to  the  general  design  of  the  work.  The  dis- 
tinction, although  but  imperfectly  defined  for  a  long  time,  lias 
finally  assumed  definite  form,  that  one  is  liable  for  the  act  of  his 

[*503] 


LIABILITY   FOR   CONTRACTORS,    AGENTS,   ETC.  PART  VI. 

Bervant,  but  not  for  that  of  a  contractor,  or  of  the  servant  of  a  con- 
tractor.1 

But  if  the  contractor  or  his  servants  do  an  act  which  turns 
out  to  be  illegal,  or  a  violation  of  the  rights  of  others,  and  it  be 
tli«'  wry  act  which  he  was  employed  to  do,  the  employer  is  liable 
to  an  action.2  Lord  Campbell,  C.  J.,  here  said,  "  The  position 
in  effect  contended  for  by  defendants'  counsel,  I  think  wholly 
untenable,  namely,  that  where  there  is  a  contractor,  the  employer 
can  in  no  case  be  made  liable.  It  seems  to  me,  that  if  the  con- 
tractor do  that  which  he  is  ordered  to  do,  it  is  the  act  of  the  em- 
ployer, and  this  appears  to  have  been  so  considered  in  the  cases  " 
[upon  the  subject].  "  In  these  cases  nothing  was  ordered,  except 
that  which  the  party  giving  the  order  had  a  right  to  order,  and 
the  contract  was  to  do  that  which  was  legal,  and  the  employer 

1  Laugher  v.  Pointer.  5  B.  &  C.  547,  where  the  subject  is  ably  discussed,  but 
not  decided,  the  court  being  equally  divided.  Quarman  v.  Burnett,  6  M.  &  W. 
499;  Milligan  v.  Wedge,  12  Ad.  &  Ellis,  737;  Knight  v.  Fox,  5  Exch.  721; 
Burgess  v.  Cray,  1  C.  B.  578;  Overton  v.  Freeman,  11  C.  B.  8G7 ;  s.  c.  8  Eng. 
L.  &  Eq.  479;  Peachey  v.  Rowland,  13  C.  B.  182;  s.  c.  16  Eng.  L.  &  Eq.  442; 
Rapson  v.  Cubitt,  9  M.  &  W.  710  ;  Reedie  v.  London  &  N.  W.  Railw.,  6  Railw. 
C.  184  ;  Hobbitt  v.  Same,  6  Railw.  C.  188;  s.  c.  4  Exch.  244;  Steel  v.  South- 
eastern Railw.,  16  C.  B.  550;  s.  c.  32  Eng.  L.  &  Eq.  366.  In  this  last  case, 
the  action  against  the  company  was  for  flowing  plaintiff's  land,  by  the  defec- 
tive manner  in  which  certain  mason  work  was  done,  by  the  workmen  of  one 
Furness,  who  did  the  work  as  a  contractor  under  the  company,  but  under  the 
superintendence  of  one  Phillips,  the  surveyor  of  the  company,  who  furnished 
the  plans.  It  appeared  that  the  injury  resulted  from  the  workmen  not  following 
the  directions  of  Phillips.     The  court  held  the  action  could  not  be  maintained. 

icell,  J.,  said:  "If  it  could  have  been  shown  that  the  plaintiff's  land  was 
flooded  in  consequence  of  something  done  by  the  orders  of  Phillips,  the  com- 
pany's surveyor,  it  might  have  been  said  that  was  the. same  as  if  Phillips  had  done 
it  with  his  own  hands,  and  then  the  company  would  have  been  responsible.  This 
work  was  done  under  a  contract,  and  there  is  nothing  to  show  negligence  in  any 
one  for  whose  acts  the  company  are  responsible."  This  seems  to  be  placing  the 
matter  upon  its  true  basis.  See  also  Young  v.  New  York  Central  Railw.,  30 
Barb.  229.  But  if  a  servant  of  the  contractor,  while  employed  on  the  work, 
receive  an  injury  from  a  passing  train  of  the  company  through  the  fault  of  their 
servants,  and  without  his  own  fault,  he  may  maintain  an  action  against  the  com- 
pany, lb.  See  also  City  of  Cincinnati  v.  Stone,  5  Ohio  (N.  S.),  38.  The  mas- 
ter is  not  responsible  for  the  act  of  his  servant,  who  is  loaned  to  and  is  under  the 
direction  and  control  and  in  the  employ,  for  the  time  being,  of  another.  Mur- 
ray r.  Currie,  L.  R.  6  C.  P.  24. 

2  Ellis  v.  The  Sheffield  Gas  Consumers'  Co.,  2  EI.  &  Bl.  767  ;  s.  c.  22  Eng. 
L.  &  Eq.  198. 

[*504] 


§  129.         LIABILITIES    FOR   CONTRACTORS   AND   THEIR    AGENTS.  529 

was  held  properly  not  liable  for  what  the  contractor  did  negli- 
gently, the  relation  of  master  and  servant  not  existing.  But 
here  the  defendants  employ  a  contractor  to  do  that  which  was 
unlawful.  Upon  the  principle  contended  for,  a  man  might  protect 
himself  in  the  case  of  a  menial  servant,  by  entering  into  a  con- 
tract." 

3.  The  American  cases  have  not  as  yet,  perhaps,  assumed  that 
definite  and  uniform  line  of  decision  which  seems  to  obtain  in  the 
English  courts  upon  the  subject.  But  there  is  a  marked  disposition, 
manifested  of  late,  to  adopt  substantially  the  same  view.3  But 
some  of  the  earlier  cases  in  this  country  and  in  England,  hold  the 
employer  responsible  for  all  the  acts  and  omissions  of  a  contractor, 
the  same  as  for  those  of  a  servant.4 

*4.  At  one  time  a  distinction  was  attempted  to  be  maintained, 
between  the  liability  of  the  owner  of  fixed  and  permanent  property 
and  the  owner  of  movable  chattels,  for  work  done  in  regard  to  them, 
or  with  them,  making  the  employer  liable  in  the  former  and  not  in 
the  latter  case.5  But  the  distinction  was  found  to  rest  upon  no 
satisfactory  basis,  and  was  subsequently  abandoned.6 

3  Kelly  v.  Mayor  of  New  York,  11  N.  Y.  432 ;  Blake  v.  Ferris,  1  Selden, 
48;  Pack  v.  The  Mayor  of  New  York,  4  Selden,  222;  Hutchinson  v.  York  and 
Newcastle  liailw.,  5  Exch.  343  ;  s.  c.  6  Railw.  C.  580,  589. 

4  Bush  v.  Steinman,  1  B.  &  P.  404;  Lowell  v.  Boston  and  Lowell  Railw.,  23 
Pick.  24.  See  also,  upon  this  point,  Mayor  of  New  York  v.  Bailey,  2  Denio, 
433 ;  Elder  v.  Bemis,  2  Met.  599  ;  Earle  v.  Hall,  id.  353.  In  the  latter  case  the 
subject  is  very  ably  discussed,  and  the  early  cases  somewhat  qualified.  And  in 
the  case  of  Hilliard  v.  Richardson,  3  Gray,  349,  there  is  a  very  elaborate  and 
satisfactory  opinion,  by  Mr.  Justice  Thomas,  in  which  the  cases  are  very  exten- 
sively reviewed,  and  the  old  rule  of  Bush  v.  Steinman  distinctly  repudiated. 

6  Rich  v.  Basterfield,  4  C.  B.  783 ;  The  King  v.  Pedley,  1  Ad.  &  Ellis,  822. 
And  see  Fish  v.  Dodge,  4  Denio,  311.  Littledale,  J.,  in  Laugher  v.  Pointer,  5 
B.  &  C.  547.  Parke,  B.,  in  Quarman  v.  Burnett,  6  M.  &  VV.  510;  Randleson 
v.  Murray,  8  Ad.  &  Ellis,  109. 

6  Allen  v.  Hayward,  7  Q.  B.  960;  Reedie  v.  London  and  N.  W.  Railw.,  4 
Exch.  244.  Aud  it  is  still  maintained,  by  some,  that  if  the  owner  or  occupier  of 
real  estate  employ  workmen  under  a  contract  which  presupposes  the  underlet- 
ting of  the  work,  or  the  employment  of  subordinates,  and  in  the  course  of  the 
accomplishment  of  the  work  any  tiling  is  done,  by  digging  or  suffering  rubbish  to 
accumulate,  which  amounts  to  a  public  nuisance,  whereby  any  person  suffers 
special  damage,  the  owner  or  occupier  of  the  premises  is  liable.  Bush  v.  Stein- 
man, 1  B.  &  P.  404;  Randleson  v.  Murray,  8  Ad.  &  Ellis,  109.  But  this  rule 
is  questioned.  Fish  v.  Dodge,  4  Denio,  311.  And  after  all  it  seems,  like  the 
other  phases  of  the  same  question,  to  resolve  itself  into  an  inquiry,  how  far  the 
vol.  i.  34  [*505J 


530  LIABILITY    FOR   CONTRACTORS,    AGENTS,    ETC.  PART  VI. 

5.  The  grounds  of  all  the  decisions  upon  this  subject  are  fully 
and  satisfactorily  explained,  in  the  cases  of  Ellis  v.  Gas  Consum- 
ers' Company,2  and  Steel  v.  Southeastern  Railway.1 

('>.  Sometimes  a  distinction  has  been  attempted  to  be  drawn,  in 
ird  to  the  employer,  whether  the  employment  were  by  the  job 
or  by  the  day,  making  him  liable  for  the  acts  of  the  operatives  in 
the  latter  and  not  in  the  former  case.  But  this  is  obviously  no 
satisfactory  ground  upon  which  to  determine  the  question,  although 
it  might,  in  point  of  fact,  come  very  nearly  to  effecting  the  same, 
or  a  similar  separation  of  the  instances  in  which  the  employer  is 
or  is  not  liable. 

7.  The  true  ground  of  the  distinction  being,  after  all,  not  the 
*  form  of  the  employment,  or  the  rule  of  compensation,  but  whether 
the  work  was  done  under  the  immediate  control  and  direction 
of  the  employer,  so  that  the  operatives  were  his  servants,  and  not 
the  servants  of  another,  who  was  himself  the  undertaker  for  ac- 
complishing the  work,  and  having  a  separate,  and  independent,  and 
irresponsible  control  of  the  operatives,  bringing  the  question  again 
to  the  same  point,  the  difference  between  a  contractor  and  a  ser- 
vant." 

8.  In  a  case  before  the  Privy  Council,  where  the  owner  of 
land  employed  Indian  laborers  in  the  Mauritius,  at  so  much  per 
acre,  to  clear  it,  which  they  did,  partly  by  lighting  a  fire  so  neg- 

firsl  employer  may  fairly  be  said  to  have  done,  or  caused  to  be  done,  the  wrong- 
ful act.  Burgess  v.  Gray,  1  C.  B.  578.  If  the  nuisance  occurred  naturally,  in 
tin'  ordinary  course  of  doing  the  work,  the  occupier  is  liable  ;  but  if  it  is  some 
irregularity  of  the  contractor,  or  his  servants,  he  alone  is  responsible.  See 
Carman  v.  Stubenville  and  Ind.  Railw.,  4  Ohio  (N.  S.),  399;  Thompson  v.  New 
Orleans  &  Carrolton  Railw.,  1  La.  Ann.  178;  s.  c.  4  id.  262;  s.  c.  10  id.  403. 

7  In  the  case  of  Blackwell  v.  Wiswall,  24  Barb.  35.5,  is  an  elaborate  opinion  by 
Han  is,  .J.,  which  was  affirmed  by  the  full  court,  which  holds  that  the  only  ground 
upon  which  one  man  can  lie  made  responsible  for  the  wrongful  acts  of  another  is, 
thai  lie  should  have  controlled  the  conduct  of  such  person.  And  that  the  person 
who  is  made  liable  lor  the  acts  of  another  must  stand  in  the  relation  of  superior. 
Heine  one  who  had  obtained  the  exclusive  right  of  a  ferry,  and  who  suffered 
another  to  operate  it  for  his  own  benefit,  as  lessee,  is  not  responsible  for  any 
injury  inflicted  upon  passengers,  through  the  negligence  or  unskilfulness  of  the 
servants  of  the  lessee,  who  conduct  the  ferry,  and  it  would  make  no  difference  if 
tin-  lessee  had  been  himself  conducting  the  ferry,  at  the  time  the  injury  accrued. 
And  it  it  were  true  that  the  grantee  of  the  ferry  was  guilty  of  a  breach  of  duty, 
in  making  the  lease,  it  will  not  entitle  any  one  to  sue  on  that  account,  unless  he 
ustained  injury  resulting  from  the  act  of  leasing  directly,  and  not  ineiden- 
tally  merely. 

[*506] 


§  129.        LIABILITIES   FOR   CONTRACTORS    AND    THEIR   AGENTS.  531 

ligently  that  sparks  were  carried  by  the  wind  upon  the  land  of 
another,  and  there  burned  down  his  house,  it  was  held,  upon 
the  ground  that  the  owner  of  the  land  retained  control  of  the 
work,  and  made  constant  interference  in  the  conduct  of  it,  that  he 
was  responsible  for  the  negligence  of  the  workmen,  as  the  relation 
of  master  and  servant,  or  superior  and  subordinate,  continued.8 

9.  Where  one  gratuitously  permits  a  carpenter  to  do  a  piece  of 
work  in  a  shed  belonging  to  the  former,  and  one  of  the  workmen 
of  the  carpenter,  in  the  course  of  the  work,  dropped  a  match  with 
which  he  had  lighted  his  pipe,  and  thereby  set  fire  to  the  shed,  it 
was  held  the  master  was  not  responsible  for  the  damage ;  notwith- 
standing the  jury  found  it  occurred  from  the  negligent  act  of  the 
defendant's  workman.9  But  it  would  have  been  otherwise  if  the 
negligence  had  occurred  in  the  course  of  the  employment. 

*10.  And  where  a  railway  company  was  empowered  by  act  of 
parliament  to  build  a  bridge  across  a  navigable  river,  but  were  to 
do  it  so  as  not  to  detain  vessels  longer  than  while  persons  and 
teams  ready  to  cross  the  bridge  were  passing  over  ;  and  during  the 
construction  of  the  work  by  a  contractor,  by  some  defect  of  con- 
struction the  bridge  could  not  be  raised,  and  the  plaintiff's  vessel 
was  detained,  it  was  held  the  company  were  responsible.10 

11.  A  person  employing  another  to  do  a  lawful  act  is  presumed, 
in  the  absence  of  evidence  to  the  contrary,  to  have  employed  him 
to  do  it  in  a  lawful  and  reasonable  manner ;  and,  therefore,  unless 
the  parties  stand  in  the  relation  of  master  and  servant,  the  em- 
ployer is  not  responsible  for  damages  occasioned  by  the  negligent 
mode  in  which  the  work  is  done.11 

8  Serandat  v.  Saisse,  Law  Rep.  1  P.  C.  152 ;  s.  c.  12  Jur.  (N.  S.)  301.  The 
case  was  governed  by  the  rule  laid  down  in  the  Code  Napoleon,  but  that  is  not 
essentially  different  from  the  rule  of  the  English  law  upon  the  subject.  The 
employer  is  responsible  for  injuries  caused  by  falling  into  excavations  made  upon 
his  land  by  contract.  Homan  v.  Stanley,  66  Penn.  St.  464.  But  a  railway  com- 
pany is  not  responsible  for  the  act  of  a  contractor  in  using  a  poisonous  compo- 
sition to  prevent  the  decay  of  timber  put  into  the  road,  whereby  the  workmen 
were  injured  in  handling  it.  West  v.  H.  L.  V.  &  T.  II.  Railw.,  5  Chicago  Legal 
News,  38.  The  opinion  in  this  case  by  Chief  Justice  Lawrence  gives  a  very 
satisfactory  view  of  the  law  on  this  question. 

9  Williams  v.  Jones,  3  H.  &  C.  602  ;  s.  c.  11  Jur.  (N.  S.)  843 ;  Woodman  v. 
Joiner,  10  id.  852  ;   Bartlett  r.  Baker,  3  H.  &  C.  153;  Blake  v.  Thirst,  2  id.  20. 

10  Hole  v.  Sittingbonne  &  Sheerness  Railw.,  6  H.  &  N.  488. 

11  Butler  v.  Hunter,  7  II.  &  N.  826;  s.  p.  Eaton  v.  E.  &  N.  A.  Railw.,  59 
Me.  520. 

[*507] 


532 


LIABILITY    FOR    CONTRACTORS,    AGENTS,    ETC. 


PART  VI. 


SECTION    II. 


\ty  of  the  <  'ompcmyfor  the  Acts  of  their  Agents  and  Servants. 


1.   Courts  manifest  disposition  to  (jive  such 
its  a  liberal  discretion. 
ipany   liable  for  torts   committed    by 
agents  in  discharge  of  their  duties. 
?,.  Mm;  l>r  liable  for  wilful  act  of  servant  in 
the  range  of  his  employment. 

4.  Some  of  the  cases  hold  it  necessary  to  show 

the  assent  of  the  company. 
n.  6.   Cases  upon  this  subject  reviewed. 

5.  Most  of  the  cases  adhere  to  the  principle  of 

respondeat  superior. 

6.  Bui  it  seems  not  to  have  been  considered 

that  the  company  is  present. 

7.  The  cases  seem  to  regard  the  company  as 

always  absent. 

8.  In  cases  where  the  company  owe  a  special 

duty,  the  act  of  the  servant  is  always 
that  of  the  company. 

9.  It  seems  more  just  and  reasonable  to  re- 

d  the  company  as  always  present  in 
the  person  of  their  agent. 

10.  What  shall  amount  to  ratification  of  the 


act  of  an  agent  by  a  corporation  diffi- 
cult to  define. 

1 1 .  How  corporations  may  be  held  responsible 

for  the  publication  of  a  libel. 

12.  The  powers   of  a  corporation  are  such 

only  as  are  conferred  by  charter. 

13.  False  certificate  of  capital  being  paid  in 

money. 

14.  Gas  company  not  bound  to  supply  gas  to 

all  who  require  it. 

15.  Company  may  become  responsible  for  false 

imprisonment. 

16.  Company  responsible  for  injury  done  by 

vicious  animals  kept  by  them  or  suffered 
to  remain  about  their  stations. 

17.  The  general  manager  of  a  railway  com- 

pany may  bind  them  for  medical  aid  for 
servant  injured  in  their  employment. 

18.  The  superintendent,  or  general  manager 

of  a  railway  can  give  no  valid  authority 
to  his  subordinates  to  do  an  act  which 
operates  as  a  fraud  upon  the  company. 


§  130.  1.  The  extent  of  the  liability  of  railways  for  the  acts  of 
their  servants  and  agents,  both  negative  and  positive,  seems  not 
very  fully  settled  in  many  of  its  incidents.  But  the  disposition  of 
*  the  courts  has  been  to  give  such  agents  and  servants  a  large  and 
liberal  discretion,  and  hold  the  companies  liable  for  all  their  acts, 
within  the  most  extensive  range  of  their  charter  powers.1 


1  Derby  v.  Phil.  &  Read.  Railw.,  14  Howard,  468,  483;  Noyes  v.  Rutland 
&  Burlington  Railw.,  27  Vt.  110;  s.  c.  2  Redf.  Am.  Railw.  Cases,  150.  We  may 
suppose  the  officers  and  servants  of  railways  to  take  exorbitant  fare  and  freight,  to 
refuse  to  permit  passengers  to  have  tickets  at  the  fixed  rate,  or  to  destroy  the  life 
of  animals,  or  of  persons,  by  recklessness,  or  wantonness,  in  the  discharge  of  their 
appropriate  duties,  and  it  would  be  strange  if  the  company  were  liable  in  the 
former  case,  on  account  of  their  special  duty  as  common  carriers,  and  not  in  the 
latter,  because  they  owed  no  duty  to  the  public  in  that  respect.  Alabama  &  Term. 
lliv.rs  Railw.  v.  Kidd,  29  Alabama,  221.  But  it  has  been  held  to  make  no  differ- 
ence,  in  regard  to  the  liability  of  the  company  for  the  act  of  their  servant,  while 
acting  in  the  due  course  of  his  employment,  that  he  did  not  follow  their  instruc- 
[*508] 


§  130.        LIABILITIES   IN   REGARD   TO    AGENTS   AND   SERVANTS.  533 

2.  This  seems  the  only  construction  which  will  be  safe  or  just, 
or  indeed  practicable.  It  has  long  been  settled,  that  corporations 
are  liable  for  torts  committed  by  their  agents,  in  the  discharge  of 
the  business  of  their  employment,  and  within  the  proper  range  of 
such  employment.2 

3.  But  it  has  been  claimed  sometimes,  that  a  corporation  is  not 
liable  for  the  wilful  wrong  of  its  agents  or  servants.3  This  opinion 
seems  to  rest  upon  those  cases  which  have  maintained  that  the 
master,  whether  a  natural  person  or  a  corporation,  is  never  liable 
for  the  wilful  act  of  his  servant.4  Without  stopping  here  to  dis- 
cuss the  soundness  of  the  general  principle,  as  applicable  to  the 
relation  of  master  and  servant,  it  must  be  conceded,  we  think,  that 
it  is  not  applicable  to  the  case  of  corporations,  and  especially  such 
as  railways.  In  regard  to  such  corporations,  it  seems  to  us  alto- 
gether an  inadmissible  proposition,  to  excuse  them  for  every  act  of 
their  servants  and  agents  which  is  done,  or  claimed  to  have  been 
done,  positively  and  wilfully,  and  which  results  in  an  injury  to  some 
*  other  party,  or  proves  to  be  illegal,  unless  directed  or  ratified  by 

tions,  either  general  or  special.  Derby  v.  Phil.  &  Read.  Railw.,  14  How.  (U.  S.) 
468,  483.  See  also  Southwick  v.  Estes,  7  Cush.  885 ;  Ramsden  v.  Boston  & 
Albany  Railw.,  104  Mass.  117. 

4  Yarborough  v.  The  Bank  of  England,  16  East,  6  ;  Queen  v.  Birmingham  & 
Gloucester  Railw.,  3  Ad.  &  Ell.  (N.  S.)  223  ;  Hay  v.  Cohoes  Co.,  3  Barb.  42 ;  2 
Aiken's  Vt.  255,  429 ;  Bloodgood  v.  M.  &  H.  Railw.,  18  Wend.  9 ;  s.  c.  1  Redf. 
Am.  Railw.  Cases,  209;  Dater  v.  Troy  T.  &  Railw.,  2  Hill,  629;  Chestnut  Hill  Turn- 
pike Co.  v.  Rutter,  4  S.  &  R.  16.  They  are  bound  by  estoppels  in  pais.  Hale  v. 
Union  Mutual  Fire  Ins.  Co.,  32  N.  H.  295.  See  also  Tebbutt  v.  B.  &  E.  Railw.  L. 
R.  6  Q.  B.  73,  where  three  railways,  terminating  at  one  point,  had  their  stations 
communicating  with  each  other  and  used  in  common  by  the  passengers  of  all. the 
roads  ;  and  while  a  passenger  of  one  of  the  other  roads  was  standing  on  the  de- 
fendants1 platform,  in  passing  from  the  terminus  of  one  of  the  other  roads  to  the 
booking  office  of  the  other  company,  waiting  for  his  luggage,  one  of  defendants' 
porters  negligently  drove  a  truck  loaded  with  luggage,  and  a  portmanteau  fell  off 
and  injured  the  plaintiff.  The  court  held  the  defendants  responsible  for  this 
misfeasance  of  their  servant ;  but  doubted  if  the  defendants  would  have  been 
responsible  for  any  defect  in  the  platform  over  which  plaintiff  was  allowed  to 
pass,  whereby  he  suffered  damage. 

8  Foster  v.  The  Essex  Bank,  17  Mass.  479,  510;  State  v.  Morris  &  Essex 
Railw.,  8  Zab.  360,  367. 

*  M'Manus  v.  Crickett,  1  East,  106;  Croft  v.  Allison,  4  B.  &  Aid.  590; 
Wright  v.  Wilcox,  19  Wend.  343;  Jackson  v.  Second  Avenue  Railw.,  -17  N.  Y. 
274;  Isaacs  v.  Third  Av.  Railw.,  id.  122. 

[*509] 


534  LIABILITY    FOR    CONTRACTORS,   AGENTS,   ETC.  PART  VI. 

the  corporation.     Some  of  the  cases  seem  to  disregard  any  such 
ground  of  exemption  for  the  corporation.5 

1.  Bui  in  some  cases  it  has  been  held,  as  before  stated,  that  the 
corporation  is  not  liable  for  the  wilful  act  of  its  agents,  unless  done 
with  the  assent  of  the  corporation,  seeming  to  imply  that  if  the 
s.i\  nit  pursue  his  own  whim  or  caprice,  and  act  upon  his  own  im- 
pulses, the  act  is  his,  and  not  that  of  the  corporation.6 

Edwards  V.  The  Union  Bank  of  Florida,  1  Florida,  136;  Whiteman  v.  Wil- 
mington &  Sua.  Railw.,  2  Harr.  51  I. 

'  Phil.,  Germantown  &  N.  Railway  v.  Wilt,  4  Whart.  143;  Fox  v.  The 
Northern  Liberties,  3  \V.  &  S.  103.  It  lias  always  seemed  to  us,  that  the  whole 
class  of  cases,  which  hold  that  the  master  is  not  liable  for  the  wilful  acts  of  his 
servant,  bas  grown  up  under  a  misconception  of  the  case  of  M'Manus  v.  Crickett, 
1  East,  106,  for  they  all  profess  to  base  themselves  upon  that  case.  That  case 
we  apprehend  was  never  intended  to  decide  more  than  that  the  master  is  not 
liable,  in  trespass,  for  the  wilful  act  of  the  servant.  Lord  Eenyon,  C.  J.,  in 
delivering  his  opinion  in  that  case,  with  which  the  court  concur,  expressly  says, 
Bpeaking  of  actions  on  the  case,  brought  against  the  master,  where  the  servant 
negligently  did  a  wrong,  in  the  course  of  his  employment  for  the  master:  "  The 
form  of  these  actions  shows,  that  where  the  servant  is,  in  point  of  law,  a  tres- 
passer,  the  master  is  not  liable,  as  such,  though  liable  to  make  compensation  for 
the  damage  consequential  from  his  employing  of  an  unskilful  or  negligent  servant." 
'•Tin'  act  of  the  master  is  the  employment  of  the  servant."  This  reasoning 
certainly  applies  with  the  same,  force  to  that  class  of  cases  where  the  act  of  the 
servant  is  both  direct  and  wilful,  as  where  it  is  only  negligent.  The  master  is 
not  liable  in  either  case,  perhaps,  so  much  for  having  impliedly  authorized  the 
act,  as  for  having  employed  an  unfaithful  servant,  who  did  the  injury,  in  the 
course  of  his  employment.  And  whether  done  negligently  or  wilfully,  seems  to 
be  of  no  possible,  moment,  as  to  the  liability  of  the  master,  the  only  inquiry  being 
whether  it  was  done  in  the  course  of  the  servant's  employment.  And  the  argu- 
ment, that  when  the  servant  acts  wilfully,  he  ipso  facto  leaves  the  employment  of 
the  master,  and  if  he  is  driving  a  coach-and-six,  or  a  locomotive  and  train  of  cars, 
thereby  acquires  a  special  property  in  the  things,  and  is,  pro  hac  vice,  the  owner, 
and  doing  his  own  business,  may  sound  plausible  enough,  perhaps,  but  we  confess 
it  seems  to  us  unsound,  although  quoted  from  so  ancient  a  date  as  Rolle's  Abridg- 
ment, and  adopted  by  so  distinguished  a  judge  as  Lord  Kenyan. 

The  truth  is  the  whole  argument  is  only  a  specious  fallacy  ;  and  whether  Lord 
Kenyan  intended  really  to  say,  that  no  action  will  lie  against  the  master  in  such 
or  only  to  say,  what  the  case  required,  that  the  master  is  not  liable  in  tres- 
pass,  it  is  very  obvious  the  proper  distinction,  in  regard  to  the  master's  liability, 
cannot  be  made  to  depend  upon  the  question  of  the  intention  of  the  servant. 
The  master  has  nothing  to  do,  either  way,  with  the  purpose  and  intention  of  his 
servants.  It  is  with  their  acts  that  he  is  to  be  affected,  and  if  these  come  within 
the  range  of  their  employment,  the  master  is  liable,  whether  the  act  be  a  misfeas- 
ance, or  a  nonfeasance,  an  omission  or  commission,  carelessly  or  purposely  done. 

It  will  happen,  doubtless,  that  when  the  master  is  under  a  positive  duty  to 

[♦509] 


§   l-°)0.         LIABILITIES    IN    REGARD    TO    AGENTS    AND    SERVANTS.  535 

*  5.  Most  of  the  cases,  upon  the  subject  of  the  liability  of  rail- 
ways, for  the  acts  of  their  officers,  agents    and    servants,  have 

keep  or  carry  things  safely,  as  a  bailee,  or  to  carry  persons  safely,  that  while  he 
will  be  liable  for  the  mere  nonfeasance  of  the  servant,  the  servant  will  not  be 
liable  to  the  same  party  for  such  nonfeasance,  there  being  do  privity  between  the 
servant  and  such  party,  no  duty  owing  to  such  person  from  the  servant.  But  in 
such  case  the  servant  will  be  liable  for  his  positive  wrongs,  and  wilful  acts  of  in- 
jury, and  the  master  is  also  liable  for  these  latter  acts,  but  not  in  trespass  ordi- 
narily, as  the  servant  is,  but  in  case.  And  so,  where  the  servant  goes  out  of  his 
employment,  and  docs  a  wrong,  as  committing  an  assault  by  his  own  hands  upon 
a  stranger,  or  stealing  goods,  or  any  other  act  wholly  disconnected  with  his  em- 
ployment, the  master  is  not  liable.  This  is  the  view  taken  of  this  subject  by 
Judge  Reeve,  Dom.  Rel.  358,  359,  360,  and  it  is,  we  think,  the  only  consistent 
and  rational  one,  and  the  one  which  must  ultimately  prevail.  It  is  virtually 
adopted,  in  regard  to  corporations,  in  England.  Queen  v.  Great  North  of  Eng- 
land Railway,  9  Q.  B.  315  (1846).  Lord  Denman,  C.  J.,  said:  "  It  is  as  easy  to 
charge  one  person,  or  a  body  corporate,  with  erecting  a  bar  across  a  public  road, 
as  with  the  non-repair  of  it,  and  they  may  as  well  be  compelled  to  pay  a  fine  for 
the  act  as  the  omission.  State  v.  Vermont  Central  Railw.,  27  Vt.  103;  Maund 
v.  The  Monmouthshire  Canal  Co.,  4  M.  &  G.  452,  where  it  is  held,  that,  trespass 
will  lie  against  a  corporation  for  the  act  of  its  servant.  This  is  familiar  law  in 
the  American  courts.  And  it  is  not  deemed  of  any  importance  that  the  agent 
should  act  by  any  particular  form  of  appointment;  and  it  would  be  strange  if 
the  liability  of  the  corporation  could  be  made  to  depend  upon  the  intention  of 
the  agent.  This  distinction  is  not  claimed  to  be  of  any  importance  where  the 
company  owe  a  duty,  as  carriers  of  freight  or  passengers,  for  there  the  corpora- 
tion are  liable  for  all  the  acts  of  their  servants;  but  for  the  acts  of  their  ser- 
vants in  regard  to  strangers,  it  has  been  claimed  there  is  no  liability  where  the 
servant  acts  wilfully,  unless  the  corporation  direct  or  affirm  the  act  of  the  ser- 
vant. And  to  this  we  may  assent,  in  a  qualified  sense.  The  corporation  does 
virtually  assent  to  all  the  acts  of  its  agents  and  servants,  done  in  the  regular 
course  of  their  employment.  A  railway  or  any  business  corporation  exists 
and  acts  only  by  its  agents  and  servants,  and  by  putting  them  into  their 
places,  or  suffering  them  to  occupy'  them,  the  company  consent  to  be  bound 
by  their  acts.  Thus,  a  conductor  or  engineer  of  a  railway,  while  he  acts  with 
the  instruments  which  the  company  put  into  his  hands  to  be  used  on  their 
behalf,  upon  the  line  of  their  road,  is  acting  instead  of  the  corporation,  and 
his  acts  will  bind  the  corporation,  whether  done  negligently  or  cautiously, 
heedlessly  or  purposely.  It  would  present  a  remarkable  anomaly  upon  this 
subject,  to  hold  the  company  liable  for  cattle  killed  carelessly  upon  their  track, 
but  not  liable  when  it  was  done  purposely  by  the  engineer,  or  other  servants 
of  the  company.  It  is  probably  true,  that  if  the  engineer  should  kill  cattle,  in 
an)  way  wholly  disconnected  with  his  employment,  either  upon  the  land  of  the 
company,  or  of  others,  the  company  could  not  be  made'  liable  ;  but  if  the  engineer 
should  destroy  them  wilfully,  by  rushing  the  engine  upon  them,  the  company 
would  be  liable  undoubtedly,  if  any  one  were,  of  which  there  can  lie  little  < iiies- 
tion.     So  the  company  might  not  be  liable  if  the  engineer  should  drive  the  engine 

[*510] 


536  LIABILITY   FOR   CONTRACTORS,    AGENTS,    ETC.  PART  VI. 

attempted  *to  carry  out  the  analogy  of  principal  and  agent,  or 
master  and  servant,  as  between  natural  persons,  and  to  apply 
Strictly  the  principle  of  respondeat  superior.1 

upon  another  road  and  there  do  damage,  when  his  employment  extended  to  no 
Bach  transaction.  The  case  of  The  Southeastern  Railw.  v.  The  European  &  Am. 
Telegraph  Co.,  9  Exch.  3G3,  seems  to  have  adopted,  in  principle,  the  view  for 
which  we  contend.  The  act  here  complained  of  was,  boring  under  the  railway, 
and  it  was  held  the  company  had  no  right  to  do  so,  and  that  they  were  liable,  in 
trespass,  for  this  unauthorized  act  of  their  servants.  See  also  Sinclair  v.  Pearson, 
7  X.  II.  219,  227,  opinion  of  Parker,  C.  J.  ;  Phil.  &  Reading  Railw.  v.  Derby, 
14  How.  468,  483,  drier,  J. ;  Case  of  the  Druid,  1  Wm.  Rob.  391,  opinion  of 
Dr.  Lushington,  reviewing  the  cases. 

And  we  do  not  very  well  see  why  the  railway  is  not  liable  to  the  very  same 
action  which  the  servant  would  be,  because  bis  act  is  the  act  of  the  corporation, 
within  the  range  of  his  employment,  as  running  over  sheep  upon  the  track,  in 
Sharrod  v.  London  &  N.  W.  Railw.,  4  Exch.  580,  where  it  is  held  the  action  must 
be  case.  The  distinction  between  this  case  and  that  of  The  Southeastern  Railw.  v. 
The  European  &  Am.  Telegraph  Co.  supra,  is  not  very  obvious,  unless  we  suppose 
in  the  latter  case  a  vote  of  the  corporation,  which  is  highly  improbable.  See  Phil. 
Railw.  Co.  v.  Wilt,  4  Whart.  143,  where  it  is  said  the  action  should  be  case,  and 
that  trespass  will  not  lie  unless  the  act  is  done  by  the  command  or  with  the  assent 
of  the  corporation,  which  never  occurs.  Corporations  do  not  vote  such  acts. 
A  vote  of  a  corporation  that  their  engineers  should  run  their  engines  over  cattle 
would  be  an  anomaly.  In  Sleath  v.  Wilson,  9  C.  &  P.  607,  where  a  servant  had  been 
driving  his  master's  carriage,  and  being  directed  to  return  to  the  stable,  or  while 
that  was  his  duty,  in  the  ordinary  course  of  his  employment,  he  went  out  of  his  way 
with  the  carriage,  to  do  some  errand  of  his  own,  and  drove  against  a  person  negli- 
gently ;  it  was  held  that  the  master  was  liable,  this  being  the  act  of  the  servant, 
in  the  course  of  his  employment,  because  the  injury  was  done  with  the  master's 
horses  and  carriage,  which  he  put  into  the  servant's  hands.  But  here  the  servant 
was  far  more  obviously  going  aside  of  his  employment,  than  in  the  supposed 
cases  of  his  assuming  to  do  a  wilful  wrong  in  the  direct  course  of  his  ordinary 
employment.  This  case  certainly  cannot  stand  with  the  argument  of  the  court, 
1  East,  106.     And  yet  it  is  confirmed  by  other  cases.     Joel  v.  Morrison,  6  C.  & 


7  Sherman  v.  Rochester,  &c.  Railw.,  15  Barbour,  574,  577 ;  Vanderbilt  v. 
Richmond  T.  C,  2  N.  Y.  479.  In  this  last  case,  it  was  held  the  company  were 
not  liable  for  the  trespass  committed  by  its  servants,  although  directed  so  to  do 
by  the  president  and  general  agent  of  the  company,  he  having  no  authority  to 
command  an  unlawful  act.  '  The  same  rule  is  laid  down*  in  Lloyd  v.  Mayor  of 
New  York,  1  Selden,  369;  Ross  v.  Madison,  1  Carter  (Ind.),  281.  And  in  an 
English  case,  Storey  v.  Ashton,  17  W.  R.  727  ;  s.  c.  L.  R.  4  Q.  B.  476,  it  was 
held  the  master  was  not  liable  for  the  act  of  his  servant,  in  driving  a  cart  against 
another  in  the  street,  where  the  servant  had  left  the  business  of  the  master  and 
gone  some  distance  upon  his  own  business,  when  the  accident  occurred,  s.  P. 
Little  Miami  Railw.  Co.  v.  Wetmore,  19  Ohio  (N.  S.),  110. 

[•511] 


§  130.         LIABILITIES   IN    REGARD   TO    AGENTS   AND   SERVANTS.  537 

*  6.  But  they  seem  to  have  lost  sight  of,  or  not  sufficiently  to 
have  considered,  one  peculiarity  of  this  mode  of  transportation  of 

P.  501.  Any  different  view  of  this  subject  will,  it  seems  to  us,  in  principle,  bring 
us  back  to  the  earlier  theory  of  the  relation  of  corporations  to  their  servants  ; 
that  corporations  are  not  liable  for  torts,  committed  by  their  servants,  they  having 
no  authority  to  bind  the  corporation  by  unlawful  acts.  There  is  an  elaborate 
case  in  20  Maine,  41,  State  v.  Great  Works  Mill  &  Manuf.  Co.,  taking  precisely 
the  old  view  of  the  liability  of  corporations  for  the  acts  of  their  servants,  where 
the  act  proves  unlawful.  But  most  of  the  later  cases  hold  the  company  liable 
for  the  torts  of  their  agents,  done  in  the  course  of  the  agency.  But  the  company 
are  not  liable  for  injuries  to  persons  or  property  through  the  recklessness  and 
want  of  common  care  and  prudence  of  such  persons,  or  property,  as  where  a 
slave  lay  down  to  sleep  upon  the  track  of  a  railway,  and  was  run  over  by  a  train 
of  cars,  it  not  being  possible  to  discover  such  slave  above  twenty  feet,  on 
account  of  the  grass  upon  the  track.  Felder  v.  Railw.  Co.,  2  McMullan,  403.- 
See  also  Mitchell  v.  Crassweller,  13  C.  B.  237;  s.  c.  16  Eng.  L.  &  Eq.  448; 
Leame  v.  Bray,  3  East,  593 ;  Claflin  v.  Wilcox,  18  Vt.  605,  where  the  principles 
involved  in  this  inquiry  are  examined.  Smith  v.  Birmingham  Gas  Co.,  1  Ad. 
&  Ell.  526.  In  two  cases  in  Vol.  24  Conn.,  Crocker  v.  New  London,  W.  &  P. 
Railw.,  249,  and  Thames  Steamboat  Co.  v.  Housatonic  Railw.,  40,  the  general 
proposition  is  maintained,  that  railway  companies  are  not  liable  for  acts  done 
without  the  command  of  the  agent,  having  the  superior  control  in  that  depart- 
ment of  the  company's  business,  at  the  time,  and  out  of  the  range  of  the  particu- 
lar employment  of  the  servant  doing  the  act.  This  seems  to  us  a  sound  and  just 
proposition.  See  also  Giles  v.  Taff  Vale  Railw.,  2  Ell.  &  Bl.  822;  Glover  v. 
London  &  North  W.  Railw.,  5  Exch.  66. 

It  is  said,  in  Illinois  Central  Railw.  v.  Downey,  18  111.  259,  that  case  cannot 
be  maintained  against  a  corporation  for  injuries  wilfully  and  intentionally  com- 
mitted by  its  servants,  and  not  occasioned  in  the  course  of  their  employment  in 
the  pursuit  of  their  regular  business.  The  judge,  in  laying  down  the  proposition, 
seems  to  found  himself  upon  the  form  of  the  action.  But  if  any  action  will  lie 
against  a  corporation  for  the  wilful  misconduct  of  its  agents,  we  do  not  see  why 
it  may  not  be  the  same  ordinarily  brought  against  natural  persons  for  similar 
injuries.  But  the  proposition  laid  down  in  the  case  is  not  entirely  clear  or  per- 
spicuous. The  act  of  a  servant  may  be  in  the  direct  course  of  his  employment 
and  business,  and  still  be  wilful,  and  that  was  the  very  case  before  the  court,  if 
the  act  was  done  wilfully.  And  where  a  passenger  got  into  an  altereati'on  with 
the  baggage  master  and  so  provoked  him  that  he  gave  the  passenger  a  blow,  it 
was  held  the  company  were  not  responsible.  Little  Miami  Railw.  v.  Wetmore, 
19  Ohio  (N.  S.),  110.  There  is  a  very  late  case  (July,  1872),  Bayley  v.  The 
Manchester,  S.  &  L.  Railw.,  Law  Rep.  7  C.  P.  415,  where  the  question  discussed 
in  this  note  seems  to  be  placed  upon  its  true  ground.  The  declaration 
contained  counts  both  in  trespass  and  case.  The  (acts  were  that  the  plaintiff 
had  procured  his  ticket  and  was  in  the  right  carriage.  But  just  before  the  train 
started  he  inquired  of  one  of  the  porters  of  the  company  if  he  was  in  the  right 
carriage  and  the  porter  told  him  he  was  not  and  he  must  come  out,  and  just  as 
the  train  was  getting  in  motion  he  violently  pulled  him  out  of  the  carriage,  and 

[*512] 


LIABILITY    FOR   CONTRACTORS,    AGENTS,    ETC.  PART  VI. 

freight  and  passengers,  that  the  superior  is  virtually  always  present, 
in  the  person  of  any  of  the  employes,  within  the  range  of  the 
employment,  as  much  so  as  is  practicable  in  such  cases.  And  this 
msideration,  in  regard  to  natural  persons,  is  held  sufficient,  to 
make  tlif  superior  always  liable  for  the  act  of  the  subordinate, 
whether  (lone  negligently  or  wilfully.8 

7.  Ami  although  the  cases  seem  to  treat  the  superior  as  always 
absent,  in  the  case  of  injuries  done  by  railways,  it  is  submitted,  that 
thf  more  just  and  reasonable  rule  is,  to  regard  the  principal  as 
always  present,  when  the  servant  acts  within  the  range  of  his  em- 
ployment.9 

8.  I'll  is  distinction  is  of  no  importance  in  regard  to  the  liability 
of  railways,  as  carriers  of  freight  and  passengers,  for  then  the  law 
makes  the  company  liable  absolutely  in  one  case  and  in  the  other, 
as  far  as  care  and  diligence  can  effect  security.  Those  cases, 
therefore,  which  have  excused  corporations  as  bailees  of  goods  for 
hire,  when  they  were  purloined  by  their  servants,  it  would  seem, 
are  necessarily  wrong.10 

both  falling  on  the  platform  the  plaintiff  received  the  injuries  complained  of. 
The  porters  were  by  law  to  act  under  the  orders  of  the  station-masters  in  doing 
the  work  about  the  stations.  The  by-laws  forbade  any  one  to  enter  or  ride  in  a 
carriage  except  where  he  had  procured  a  ticket  in  the  direction  the  train  was 
going.  There  was  no  express  by-law  or  regulation  justifying  the  removal  of  a 
passenger  from  a  carriage  except  where  he  was  intoxicated  or  persisted  in  smok- 
iiiL1  in  a  non-smoking  carriage.  The  court  held  the  company  responsible  on  the 
ground  that  the  servant  was  acting  on  behalf  of  the  company  within  the  scope  of 
his  employment.  Willes,  Justice,  said  :  "A  person  who  puts  another  in  his  place 
to  do  a  class  of  acts  in  his  absence  necessarily  leaves  him  to  determine,  according 
to  circumstances  that  arise,  when  an  act  of  that  class  is  to  be  done,  and  trusts 
liiin  for  the  manner  in  which  it  is  done;  and  consequently  he  is  held  answerable 
for  the  wrong  of  the  person  so  intrusted,  either  in  the  manner  of  doing  such  an 
a't,  or  in  doing  such  an  act  under  circumstances  in  which  it  ought  not  to  have 
been  done.1'  But  it  is  here  said  by  the  learned  judge,  that  the  act  must  be  done 
by  the  servant  in  the  bona  fide  pursuit  of  his  employment,  and  not  of  his  own 
mere  caprice,  in  order  to  bind  the  master. 

8  .Morse  v.  The  Auburn  &  Syr.  Railw.  Co.,  10  Barb.  621 ;  Vanegrift  v.  Railw., 
2   N.  J.    185,  188.     See  also  Burton  v.  Philadelphia,   &c.   Railw.,  4  Harring. 
252. 

indler  v.  Broughton,  1  Crompton  &  M.  29.  In  this  case  it  is  held,  that 
if  the  master  is  present,  although  passive,  he  is  liable  for  the  wilful  act  of  his 
servant.      M'Laughlin  v.  Pryor,  1  Car.  &  M.  354. 

Poster  r.  The  Essex  Bank,  17  Mass.  47(J,  510.     Trespass  will  lie  against  a 
railway  company.     Crawfordsville  Railw.  v.  Wright,  5  Ind.  252. 

[•513] 


§  130.         LIABILITIES   IN    REGARD   TO    AGENTS   AND   SERVANTS.  539 

9.  But,  as  railways  are,  like  other  corporations,  mere  entities  of 
the  law,  inappreciable  to  sense,  we  do  not  see  why  this  abstraction 
should  not  be  regarded  as  always  existing  and  present  in  the  dis- 
charge of  its  functions.  It  is  indeed  a  mere  fiction,  whether  we 
regard  the  company  as  present  or  absent.  And  it  seems  more  just 
and  reasonable,  that  the  fiction  should  not  be  resorted  to,  to  excuse 
just  responsibility.  It  is  certain  we  never  require  proof  of  any 
organic  action  of  the  corporation,  to  constitute  railways  carriers 
of  freight  and  passengers.  All  that  is  required,  to  create  the  lia- 
bility, is  the  fact  of  their  assuming  such  offices.  So,  too,  for  the 
most  part,  in  regard  to  injuries  to  strangers  and  mere  torts,  it  is 
not  expected  that  proof  will  bo  given  of  any  express  authority  to 
the  servant  or  employe'  to  do  the  particular  act.11 

*  10.  What  shall  amount  to  a  ratification  of  the  acts  of  its  agent 
by  the  stockholders  of  the  corporation,  so  as  to  give  an  authority 
not  expressly  conferred,  or  one  not  intended  to  have  been  conferred, 
or  even  where  the  formal  act  of  the  corporation  was  a  denial  of  the 

11  Lowell  v.  Boston  &  Lowell  Railw.,  23  Pick.  24.  Numerous  cases  upon  the 
subject  of  the  liability  of  railways  show  this  practically.  Where  the  company 
begins  to  run  trains  before  condemning  the  land  to  their  use,  it  is  seldom  that 
the  act  of  running  them  is  traceable  directly  to  the  corporation,  except  as  the 
act  of  the  employes.  This  is  always  done  by  design,  and  never  any  doubt  was 
entertained  that  the  company  are  liable,  and  in  trespass,  to  the  land-owner, 
which  could  not  be  the  case  upon  the  strict  analogies  referred  to  in  note  (G), 
unless  the  corporation  were  regarded  as  present,  and  assenting  to  the  act. 
Hazen  v.  Boston  &  Maine  Railw.,  2  Gray,  574;  Eward  v.  Lawrenceburg  & 
Upper  Mis.  Railw.,  7  Porter  (Lad.),  711;  Hall  v.  Pickering,  40  Maine,  548. 
The  rule  laid  down  upon  this  subject  by  Lord  Denman,  < '.  J.,  in  a  case  which, 
although  a  trial  at  Nisi  Frius,  seems  to  have  been  examined  and  acquiesced  in 
by  all  the  judges  of  K.  B.,  Rex  v.  Medley,  6  C.  &  P.  292,  certainly  exhibits  the 
sagacity  and  wisdom  of  its  author.  That  is  the  case  of  an  indictment  against  the 
directors  of  a  gas  company  for  the  act  of  the  company's  superintendent  and  engi- 
neer, in  conveying  the  refuse  gas  into  a  great  public  river,  whereby  the  fish  are 
destroyed,  and  the  water  rendered  unfit  for  use,  &c,  thereby  creating  a  public 
nuisance.  No  distinction  is  attempted,  or  could  fairly  be  made  here  between 
the  liability  of  the  company  and  that  of  the  directors.  The  court  held  the 
director-  liable  for  an  act  done  by  their  superintendent  and  engineer,  under  a 
general  authority  to  manage  the  works,  though  they  were  personally  ignorant 
of  the  particular  plan  adopted,  and  though  such  plan  was  a  departure  from  the 
original  ami  understood  method,  which  the  directors  had  no  reason  to  auppose 
was  discontinued.  The  learned  judge  uses  this  significant  language,  which  fully 
justifies  all  we  contend  for:  "  It  seems  to  me  both  common  sense  and  law,  that 
if  persons,  for  their  own  advantage,  employ  servants  to  conduct  works,  they  must 
be  answerable  for  what  is  done  by  those  servants." 

[*514] 


540  LIABILITY    FOR   CONTRACTORS,    AGENTS,   ETC.  PART  VI. 

authority,  has  been  a  good  deal  discussed,  and  is  not,  perhaps,  sus- 
eeptible  of  a  specific  definition.  The  question  is  discussed  and  the 
authorities  examined  in  Cumberland  Coal  Company  v.  Sherman.12 

11.  And  it  seems  to  be  settled,  both  in  this  country  and  in 
England,  that  a  corporation  may  become  responsible  for  the  pub- 
lication of  a  libel.  In  the  English  case,13  a  railway  company  were 
held  responsible  for  telegraphing  along  their  line,  that  the  plain- 
tiffs, who  were  bankers,  had  stopped  payment.  Lord  Campbell  said : 
The  allegation  of  malice  "  may  be  proved  by  showing  that  the  pub- 
lication of  a  libel  took  place  by  order  of  the  defendants,  and  was 
therefore  wrongful,  although  the  defendants  held  no  ill  will  to  the 
plaintiffs,  and  did  not  mean  to  injure  them."  And  the  leading 
American  case14  decides  that  a  railway  may  be  liable  for  a  libel 
*  published  and  circulated  in  their  reports,  wherein  they  represented 
the  plaintiff  as  an  incompetent  mechanic  and  builder  of  bridges, 
station-houses,  and  other  structures,  and  wanting  in  all  requisite 
capacity  and  skill  for  such  employment.  The  court  held  that,  in 
the  absence  of  express  malice  or  bad  faith,  the  report  to  the  stock- 
holders is  a  privileged  communication,  but  the  privilege  does  not 

•extend  to  the  publication  of  the  report  and  evidence  in  a  book  for 
distribution  among  the  persons  belonging  to  the  corporation  and 
others,  and  so  far  as  the  corporation  authorized  the  publication  in 
the  form  employed  they  are  responsible  in  damages. 

12.  It  is  well  settled,  that  corporations  have  no  powers  except 
such  as  are  conferred  by  their  charters,  or  incidentally  requisite 
to  carry  into  effect  the  purposes  of  their  charters.  Hence  it  was 
held,  that  a  charter  to  build  a  road  to  the  top  of  a  mountain  and 
take  tolls  thereon,  does  not  warrant  the  company  in  purchasing 
horses  and  carriages  and  establishing  a  stage  route.  Nor  does 
an  additional  act  for  erecting  and  leasing  buildings  for  the  ac- 
commodation of  the  business  of  the  company  or  others  on  the 
road  have  that  effect.  And  an  agent  can  do  no  act  not  within 
the  corporate  powers,  nor  can  the  corporation  ratify  any  such 
act.15 

13.  Where  the  statute  requires  the  directors  of  a  corporation  to 

12  30  Barb.  553. 

3  WTiitefield  v.  Southeast.  Railw.  Co.,  Ellis,  Black.  &  Ellis,  115. 

14  Philadelphia,  Wil.  &  Bait.  Railw.  v.  Quigley,  21  How.  (U.  S.)  202;  s.  c. 
2  Redf.  Am.  Railw.  Cases,  330. 

15  Downing  v.  Mount  Washington  Road  Co.,  40  N.  H.  230. 

[*515] 


§  130.         LIABILITIES    IN    REGARD    TO    AGENTS    AND    SERVANTS.  541 

certify  the  fact  of  the  capital  stock  being  paid  into  the  treasury 
in  cash,  and  this  is  done,  when  in  fact  the  payment  was  made  in 
property  of  uncertain  value,  such  certificate  is  false,  and  the 
directors  responsible  for  the  debts  of  the  company  under  the 
statute,  imposing  that  penalty  for  making  a  false  certificate  in 
that  respect. ltj 

14.  A  gas  company,  chartered  for  the  purpose  of  lighting  the 
streets  and  buildings  of  a  town,  is  not  obliged  to  supply  gas  to  all 
persons  having  buildings  on  the  line  of  their  pipes,, upon  being 
tendered  reasonable  compensation.17 

15.  In  one  case 18  it  is  said  the  company  are  responsible  for  a 
*  false  imprisonment  committed  by  its  agents,  and  no  authority 
under  seal  is  requisite ;  but  there  must  be  evidence  justifying  the 
jury  in  finding  that  the  company's  servants  who  did  the  act  had 
authority  from  the  company  to  do  so.  In  this  case  the  plaintiff 
had  been  taken  into  custody  by  the  servants  of  the  company,  and 
by  direction  of  the  superintendent  of  the  line,  carried  before  a 
magistrate,  and  charged  with  an  attempt  to  travel  in  one  of  the 
company's  carriages  without  having  first  paid  his  fare  and  pro- 
cured a  ticket.  The  fact  was,  he  had  paid  his  fare  and  procured 
a  ticket  and  mislaid  it  at  home,  and,  by  mistake,  taken  another 
ticket  accidentally  laid  in  the  same  place.    He  explained  the  trans- 

16  Waters  v.  Quimby,  3  Dutcher,  198. 

17  Paterson  Gas  Light  Co.  v.  Brady,  3  Dutcher,  245. 

1S  Goff  v.  Great  Northern  Railw.  Co.,  3  El.  &  El.  672;  s.  c.  7  Jur.  (N.  S.) 
286.  But  where  the  station  master  ordered  the  owner  of  a  horse  into  custody 
till  it  could  be  ascertained  if  his  claim  that  the  horse  was  to  be  carried  free  of 
charge  were  well  founded,  it  was  held  that,  as  there  could  be  no  pretence  of  the 
company  having  any  claim  to  make  any  such  arrest,  they  could  not  be  held  liable 
for  what  was  so  manifestly  a  mere  tort  of  the  servant.  Poulton  v.  London  &  S.  W. 
Railw.,  Law  Rep.  2  Q.  B.  534.  But  where  the  servant  of  a  railway  company 
does  an  act  of  force  towards  another,  in  the  due  course  of  his  employment,  or 
under  discretionary  authority  from  the  company,  as  in  expelling  a  passenger 
from  their  cars  for  not  paying  fare,  under  a  mistake  of  the  fact,  or  with  needless 
violence,  the  company  is  responsible,  and  the  action  may  be  against  the  servant 
and  corporation  jointly.  Moore  v.  Fitchburg  Railw.,  4  Gray,  465.  But  the 
president  of  the  company  is  -  not  liable  in  such  case  for  merely  transmitting  the 
genera]  authority  of  the  corporation  to  the  servant,  but  would  be  if  he  originated 
the  particular  order.  Ilewett  v.  Swift  et  Otis.,  '■'>  Allen,  420.  See  St.  John  v. 
Eastern  Railw.,  1  Allen,  544.  So,  too,  the  company  is  responsible  for  any  neg- 
ligence  or  misconduct  of  its  servants,  in  the  course  of  their  employment,  in 
assisting  passengers  to  alight  from  the  cars.  Drew  v.  Sixth  Avenue  Railw.,  40 
N.  Y.  (3  Keyes)  429. 

[•516] 


542  LIABILITY    FOR   CONTRACTORS,    AGENTS,    ETC.  PART  VI. 

action  to  the  company's  servants,  and  declined  to  pay  fare  again, 
because  he  had  not  the  means,  but  offered  to  pawn  some  of  the 
tools  of  his  trade  which  he  had  with  him.  The  court  held,  that, 
as  some  one  must  have  authority  to  act  for  the  company  in  such 
emergencies,  the  superintendent  of  the  line  must  be  regarded  as 
having  that  authority.  The  jury  gave  a  verdict  for  the  plaintiff  for 
£50  damages,  and  the  court  declined  to  interfere  on  the  ground 
thai  they  were  excessive.  The  wonder  is  that  any  one  should 
have  had  any  hesitation  in  regard  to  the  acts  of  the  agents  who 
thus  acted  in  matters  representing  the  company.  It  should 
be  considered  in  all  cases,  that  where  a  servant  of  any  corpo- 
ration does  any  act  coming  fairly  within  the  scope  of  the 
business  intrusted  to  him,  it  must  be  held  binding  upon  the 
company. 

16.  It  seems  to  be  considered  that  railway  companies  may  be 
responsible  where  injury  to  passengers,  or  others  rightfully  there, 
occurs  in  consequence,  for  allowing  a  dangerous  animal  to  remain 
about  their  stations  after  they  have  sufficient  knowledge  of  its 
*  vicious  propensities.  But  the  fact  that  a  stray  dog  had  torn  the 
dress  of  one  passenger  a  few  hours  before,  and  attacked  a  cat  soon 
after,  and  been  driven  from  the  station  by  the  servants  of  the  com- 
pany, and  soon  after  returned  and  bit  the  plaintiff,  will  not  be 
sufficient  to  render  the  company  responsible.19  But  where  injury 
occurred  from  the  bite  of  a  dog  kept  about  the  stables  of  a  horse 
railway  company,  by  a  person  employed  by  them  and  having  charge 
of  their  stables,  and  with  the  knowledge  and  implied  assent  of 
their  superintendent,  it  was  held  that  the  company  might  properly 
be  regarded  as  the  keeper  of  the  dog,  and  responsible  under  the 
statute  for  double  the  damages  sustained  by  the  bite.20 

17.  The  general  manager  of  a  railway  has  authority  to  bind  the 
company  to  pay  for  medical  attendance  on  a  servant  of  the  com- 
pany, injured  by  an  accident  in  their  employment.21 

18.  But  the  general  superintendent,  manager,  or  managing- 
director,  has  no  authority  to   bind  the  company  to  a  secret  and 

19  Smith  v.  Great  Eastern  Railw.,  Law  Rep.  2  C.  P.  4. 
50  Barrett  v.  Maiden  &  Melrose  Railw.,  3  Allen,  101. 

21  Walker  v.  Great  Western  Railw.,  Law  Rep.  2  Exch.  228;  s.  p.  Toledo, 
W.  and  Western  Railw.  v.  Rodrigues,  47  111.  188.     See  post,  §  182,  pi.  4,  n.  5. 

[*517] 


§131. 


INJURIES   BY    FELLOW-SERVANTS. 


543 


fraudulent  diversion  of  the  funds  or  earnings  of  the  company  by 
any  of  the  subordinate  employe's  or  servants.22 


SECTION     III. 


Injuries  to  Servants,  by  neglect  of  Fellow- Servants,  and  use  of 

Machinery. 


1.  In  general  no  such  cause  of  action  exists 

against  cow/huh/. 

2.  But  if  there  is  any  fault  in  employing 

unsuitable  servants,  or  machinery,  they 
are  liable. 

3.  But  not  liable  for  deficiency  of  help  or  for 

not  fencing  road. 

4.  Has  been  questioned  whether  rule  applies 

to  servants  of  different  grades. 

5.  Rule  not  adopted  in  some  states.     Case  of 

slaves.     Scotland. 

6.  No  implied  contract,  by  ship-owners,  that 

ship  is  seaworthy. 

7.  But  rule  does  not  apply  where  servant  has 

no  connection  with  the  particular  work. 
n.  9.   Cases  reviewed  in  England,  Scotland, 
and  America. 

8.  English  case  illustrating  the  English  doc- 

trine. 


9.  Statement  of  the  laiv  in   Kentucky  and 
review  of  the  subject. 

10.  Subject  reviewed  by  Chief  Justice  Shaw. 

11.  Company  may  show  in  excuse,  that  the 

damage  accrued  from  the  sen-nut  disre- 
garding his  instructions. 

12.  The  servants  of  one  company,  not  fellow- 

servants  with  those  of  another  company, 
using  the  same  station,  where  the  in  jury 
occurred. 

13.  The  fact  that  the  injury  occurred  by  reason 

of  the  intoxication  of  a  fellow-servant, 
and  that  his  being  an  habitual  drunk- 
ard was  known,  or  ought  to  have  been, 
by  the  company,  tends  to  show  culpable 
neglect  on  their  part. 

14.  Employer  responsible  where  his  own  neg- 

ligence concurs  with  that  of  fellow- 
servant. 


§  131.  1.  It  seems  to  be  now  perfectly  well  settled  in  England, 
and  mostly  in  this  country,  that  a  servant,  who  is  injured  by  the 

22  Concord  Railw.  v.  Clough,  49  N.  H.  257.  The  facts  in  this  case  were  that 
the  rules  established  by  the  directors  required  the  conductors  to  add  ten  cents  to 
the  fare  required,  if  paid  at  the  stations,  whenever  it  was  paid  in  the  cars.  The 
defendant,  being  a  conductor  on  plaintiffs1  road,  received  fares  in  the  cars  at  a 
less  amount  than  the  rules  required,  and  did  not  enter  such  fares  upon  the  daily 
way-bills  filed  in  the  ticket-master's  office ;  but  instead  of  that,  which  it  was  his 
duty  to  do,  expended  the  money  so  received  in  the  cars  in  the  purchase  of  tick- 
ets at  the  ticket-offices,  and  after  punching  them,  to  indicate  that  they  had  been 
taken  up  of  passengers,  in  the  ordinary  course  of  business,  returned  them  with 
his  other  tickets  taken  up.  This  was  done  by  the  consent  of  the  superintendent, 
but  purposely  kept  from  the  knowledge  of  the  directors.  In  this  manner,  although 
the  company  received  all  the  money  collected  by  the  (-(inductor  of  passengers,  it 
fell  short  of  the  full  fares  $5,509.  The  defendant  also,  by  purchasing  joinl  tick- 
ets of  other  roads,  extending  over  the  plaintiffs1  road,  and  selling  them  to  pas- 
sengers, deprived  the  company  of  benefits  arising  from  the  sale  of  their  own 

[*517] 


544  LIABILITY    FOR   CONTRACTORS,   AGENTS,    ETC.  PART  VI. 

*  negligence  or  misconduct  of  his  fellow-servant,  can  maintain  no 
action  against  the  master  for  such  injury.1 

2.  But  it  seems  to  be  conceded,  that  if  there"  be  any  fault 
in  the  selection  of  the  other  servants,  or  in  continuing  them 
in  their  places,  after  they  have  proved  incompetent,  perhaps, 
or  in  the  employing  unsafe  machinery,  the  master  will  be 
answerable    for    all    injury    to    his    servants,   in    consequence.2 

tickets,  which  they  would  otherwise  have  received  to  the  amount  of  $2,000.  This 
was  done  by  consent  of  the  superintendent,  but  without  the  knowledge  of  the 
directors.     The  defendant  was  held  responsible  for  both  sums. 

'  Priestly  v.  Fowler,  3  M.  &  W.  1 ;  Hutchinson  v.  York,  Newcastle,  &  Ber- 
wick Railw.,5  Exch.  343;  Wigmore  v.  Jay,  5  Exch.  354;  Skip  v.  Eastern  Coun- 
ties Railw.,  24  Eng.  L.  &  Eq.  396  (1853)  ;  Farwell  v.  Bos.  &  W.  Railw.,  4  Met. 
49;  Murray  v.  South  C.  Railw.,  1  McMullan,  385;  Brown  v.  Maxwell,  6  Plill 
(X.  Y.),  592;  Coon  v.  Sy.  &  Utica  Railw.,  6  Barb.  231;  s.  C-.  1  Selden,  492; 
Haves  v.  Western  Railw.,  3  Cush.  270;  Sherman  v.  Roch.  &  Sy.  Railw.,  15 
Barb.  574;  McMillan  v.  Railroad  Co.,  20  Barb.  449;  Honner  v.  The  Illinois 
Central  Railw.,  15  111.  550;  Ryan  v.  Cumberland  Valley  Railw.,  23  Penn.  St. 
384;  King  v.  Boston  &  Worcester  Railw.,  9  Cush.  112;  Madison  &  I.  Railw.  v. 
Bacon,  6  Porter  (Ind.),  205.  The  same  rule  prevails  in  Virginia.  Hawley  v. 
Baltimore  &  Ohio  Railw.,  6  Am.  Law  Reg.  352. 

2  Shaw,  C.  J.,  4  Met.  49,  57;  Keegan  v.  Western  Railw.,  4  Selden,  175. 
But  it  makes  no  difference  in  regard  to  the  liability  of  the  company  that  the  per- 
son came  into  the  service  voluntarily,  to  assist  the  servants  of  the  company  in  a 
particular  emergency,  and  was  killed  by  the  negligence  of  some  of  the  servants. 
Degg  v.  Mid.  Railw.  Co.,  1  H.  &  N.  773.  It  is  said,  McMillan  v.  Saratoga  & 
Wash.  R.,  20  Barb.  449,  that  the  servant  in  order  to  entitle  himself  to  recover 
for  injuries  from  defective  machinery,  must  prove  actual  notice  of  such  defects  in 
the  master.  But  culpable  negligence  is  sufficient,  undoubtedly,  and  that  is  such 
as,  under  the  circumstances,  a  prudent  man  would  not  be  guilty  of.  Post,  note 
10,  §  131  ;  Harper  v.  Ind.  &  St.  D.  Railw.,  47  Mo.  567;  Col.  &  Ind.  Central 
Railw.  v.  Arnold,  31  Ind.  174;  111.  Central  Railw.  v.  Jewell,  46  111.99.  The 
case  47  Mo.  567,  was  where  the  engineer  was  allowed  to  let  the  fireman  take  his 
place  temporarily,  when  he  considered  him  competent,  and  he  proved  incompe- 
tent, the  company  were  held  responsible.  But  if  the  servant  knew  of  the  defects, 
and  did  not  inform  the  master,  or  if  the  defects  were  known  to  both  master  and 
servant,  and  the  servant  made  no  objection  to  continue  the  service,  he  probably 
could  not  recover  of  the  master  for  any  damage  in  consequence.  But  if  the 
master  know  of  the  defect,  and  direct  the  servant  to  continue  the  service,  in  a 
prescribed  manner,  he  is  responsible  for  the  consequences.  Mellors  v.  Shaw,  7 
Jnr.  (N.  S.)  845.  Where  the  defendants  were  joint  owners  and  workers  of  a 
coal-mine,  and  one  of  the  employes  was  injured  by  a  defect  in  the  machinery, 
and  it  appeared  that  one  of  the  defendants  personally  interfered  in  the  man- 
agement of  the  colliery,  and  the  jury  found  that  defendant  guilty  of  personal 
negligence,  it  was  held  sufficient  to  implicate  both  defendants,  as  they  must  be 
presumed  to  have  known  that  improper  machinery  was  being  employed.     Ash- 

[*518] 


§  181.  INJURIES    BY   FELLOW-SERVANTS.  545 

*  In   Frazier  v.  The  Pennsylvania  Railway  Company,3  it  was 
held,  that  if  the  company  knowingly  or  carelessly  employ  a  rash 

worth  v.  Stanwix,  30  L.  J.  Q.  B.  183.  But  see  Wright  v.  N.  Y.  Central  Railw., 
28  Barb.  80 ;  post,  n.  3,  20 ;  Morgan  v.  Vale  of  Neath  Railw.,  L.  R.  1  Q.  B.  149. 
The  company  was  held  responsible  for  an  injury  to  one  of  its  servants  caused  by 
want  of  repair  in  the  road-bed.  Snow  v.  Ilousatonic  Railw.,  8  Allen,  411.  But 
the  company  cannot  be  held  as  guarantors  to  its  servants  that  the  structures  con- 
tinue in  proper  condition.  If  originally  properly  built  and  properly  inspected, 
from  time  to  time,  it  is  all  that  can  be  required.  As,  for  instance,  if  a  servant  is 
killed  by  the  falling  of  a  bridge,  properly  constructed,  and  carefully  inspected 
the  day  before,  the  company  is  not  responsible.  Faulkner  v.  Erie  Railw.,  49 
Barb.  324;  Warner  v.  Same,  8  Am.  Law  Reg.  (N.  S.)  209.  The  general  doc- 
trine of  the  text  is  maintained  and  illustrated  in  Harrison,  Adm'r,  v.  Central 
Railw.,  2  Vroom,  293;  Weger  v.  Penn.  Railw.,  55  Penn.  St.  460;  Shauck  v. 
Northern  Central  Railw.,  25  Md.  462;  P.  F.  W.  &  Chicago  Railw.  v.  Devinney, 

17  Ohio  (N.  S.),  197  ;  Warner  v.  Erie  Railw.,  39  N.  Y.  468.  And  if  the  master 
use  reasonable  precautions  and  efforts  to  procure  safe  and  skilful  servants,  but, 
without  fault,  happen  to  have  one  in  his  employ  through  whose  incompetency 
damage  occurs  to  a  fellow-servant,  the  master  is  not  liable.     Tarrant  v.  Webb, 

18  C.  B.  797.  In  Dynen  v.  Leach,  26  Law  J.  (N.  S.)  Exch.  221,  it  was  decided, 
that  where  an  injury  happens  to  a  servant  in  the  use  of  machinery,  in  the  course 
of  bis  employment,  of  the  nature  of  which  he  is  as  much  aware  as  his  master,  and 
the  use  of  which  is  the  proximate  cause  of  the  injury,  the  servant  cannot  recover, 
nor,  if  death  ensues,  can  his  personal  representative  recover  of  the  master,  there 
being  no  evidence  of  any  personal  negligence  on  his  part,  conducing  to  the  injury. 
Nor  does  it  vary  the  case  that  the  master  has  in  use  in  his  works  an  engine,  or 
machine,  less  safe  than  some  other  which  is  in  general  use,  or  that  there  was 
another  and  safer  mode  of  doing  the  business,  which  had  been  discarded  by  his 
orders.  And  in  Assop  v.  Yates,  2  II.  &  N.  768,  it  was  held,  that  if  the  servant 
knew  of  the  exposure,  and  consented  to  continue  the  service,  and  suffered  dam- 
age, he  could  not  recover  of  the  master  for  any  negligence  which  might  have 
contributed  to  the  result.  And  if  one  servant  knows  of  the  incompetency  of 
another  fellow-servant,  and  gives  no  information  to  the  employer,  but  continues 
in  the  service,  he  cannot  recover  for  any  injury  sustained  by  such  incompetency. 
Davis  v.  Detroit  &  Mich.  Railw.,  20  Mich.  105.  But  if  one  of  the  servants  of  the 
company  is  injured  in  coupling  the  cars,  through  defect  in  the  apparatus,  which 
was  known  to  the  superintendent,  and  about  being  laid  aside  on  that  account,  but 
not  known  to  the  servant,  and  without  fault  on  his  part  or  that  of  any  fellow- 
servant,  the  company  is  liable.  Gibson  v.  Pacific  Railw.,  46  Mo.  163.  And 
where  a  boy,  fourteen  years  of  age,  was  set  to  tend  a  machine,  in  dangerous 
proximity  to  another  machine,  without  cautioning  him  against  the  exposure,  and 
he  was  in  consequence  injured,  without  any  more  incaution  on  his  part  than 
might  naturally  have  been  expected  of  one  in  his  position  and  of  his  age,  the 


3  38  Penn.  St.  104;  Wright  v.  X.  Y.  <  lentral  Railw.  Co.,  28  Barb.  80;  ( !arle 
v.  B.  &  P.  Canal  and  R.  R.  Co.,  13  .Me.  269. 

35  [*519] 


546  LIABILITY   FOR   CONTRACTORS,    AGENTS,   ETC.  PART  VI. 

or  incompetent  conductor,  whereby  the  brakeraan  on  the  train  is 
injured,  the  company  are  responsible  for  the  injury;  that  the  act 
ni  the  agenl  of  the  company  having  charge  of  employing  such 
nts  or  servants,  and  of  dismissing  them  for  incompetency,  is 
the  act  of  the  company  ;  but  the  company  are  not  responsible  for 
such  injury,  unless  they  were  in  fault  in  employing  or  continuing 
the  conductor  in  their  service  ;  that  the  character  of  such  conduc- 
tor for  skill  and  faithfulness  may  be  shown  by  general  reputation. 
The  master  is  not  in  general  bound  to  use  any  special  precautions 
to  secure  the  servant  from  injury  in  regard  to  matters  equally 
within  the  knowledge  of  both.4  But  the  master  is  liable  for  all  in- 
juries accruing  to  his  servants  from  his  own  personal  negligence ; 
and  this  may  consist  in  personal  interference  in  the  particular 
matter  causing  the  injury,  or  by  negligently  retaining  incompetent 
servants,  producing  the  injury.5  But  a  railway  company  is  liable 
in  damages  for  an  injury  resulting  to  any  person  lawfully  using  its 
road,  from  its  neglect  to  introduce  any  improvement  in  its  machinery 
or  apparatus,  which  is  known  *  to  have  been  tested,  and  found  mate- 
rially to  contribute  to  safety,  and  the  adoption  of  which  is  within  its 
power  so  as  to  be  reasonably  practicable.6  But  in  another  case," 
in  an  action  by  a  servant  against  his  master  for  injuries  sustained 
by  the  explosion  of  a  steam-boiler  used  in  his  business  the  plain- 
tiff introduced  evidence  without  objection,  that  there  was  no  such 
fusible  safety-plug  on  the  boiler  as  was  required  by  statute  ;  and 
the  presiding  judge  excluded  evidence  of  a  custom  among  engineers 
not  to  use  such  a  plug,  and  instructed  the  jury  that  if  the  defend- 
ant knowingly  used  the  boiler  without  the  plug,  and  the  want  of  it 
caused  the  accident,  the  plaintiff  was  entitled  to  recover,  and  re 

employer  will  be  held  responsible ;  but  if  the  jury  should  believe  the  servant  un- 
derstood  the  peril,  and  voluntarily  incurred  it,  he  could  not  recover.  Coomb 
v.  New  Bedford  <  lordage  Co.,  102  Mass.  572.  A  fireman  injured  by  a  defect  in 
the  engine,  which  had  been  brought  to  the  knowledge  of  the  mechanics  employed 
in  repairing  such  engines,  but  which  they  had  failed  to  remedy  in  repairing  the 
same,  was  held  not  entitled  to  recover  of  the  company,  without  showing  notice  of 
the  defect  to  some  agent  authorized  to  receive  such  notice  on  behalf  of  the  com- 
pany, and  want  of  diligence  in  repairing  the  defect.  Mobile  &  Ohio  Railw.  v. 
Thomas,  12  Ala.  672. 

1  Seymour  v.  Maddox,  16  Q.  B.  326. 

5  Ormond  v.  Holland,  1  El.,  Bl.  &  El.  102. 

,;  Smith  v.  N.  Y.  &  Harlem  Railw.  Co.,  19  N.  Y.  127. 

'  Cazyer  v.  Taylor,  10  Gray,  271. 

[*520] 


§  131.  INJURIES    BY    FELLOW-SERVANTS.  547 

fused  to  instruct  them  that  if  the  defendant  used  all  the  appliances 
for  safety  that  were  ordinarily  used  in  such  establishments,  he  was 
not  liable,  although  he  did  not  use  the  fusible  plug  required  by 
statute,  and  it  was  held  the  defendant  had  no  ground  of  excep- 
tion. It  is  here  declared  by  the  court  that  ordinary  care  must  be 
measured  by  the  character  and  risks  and  exposures  of  the  business, 
and  the  degree  of  care  required  is  higher  when  life  or  limb  is 
endangered,  or  a  large  amount  of  property  is  involved,  than  in 
other  cases.8 

3.  But  the  company  are  not  liable  because  there  was  a  deficiency 
of  help  at  that  point.9  And  a  neglect  in  the  company  to  fence  their 
road,  whereby  the  engine  was  thrown  from  the  track,  by  coming  in 
contact  with  cattle  thus  enabled  to  come  upon  the  road,  and  a  ser- 
vant of  the  company  so  injured  that  he  died,  will  not  render  them 
liable.10 

4.  But  it  has  been  questioned  whether  the  rule  has  any  just  ap- 
plication to  servants  in  different  grades,  who  are  subordinated  the 
one  to  the  other.11     But  as  the  ground  upon  which  the  rule  *  is  at- 

8  Post,  Common  Carriers  of  Passengers.  See  also  Briggs  v.  Taylor,  28  Vr. 
180,  184;  s.  c.  2  Redf.  Am.  Railw.  Cases,  558. 

9  Skip  v.  Eastern  Counties  Railw.,  9  Exch.  223;  Hayes  v.  Western  Railw., 
3  Cush.  270. 

10  Langlois  v.  Buf.  &  Roch.  R.,  19  Barb.  364.  But  under  the  English  statute 
the  master  has  been  held  responsible  for  any  omission  of  duty  in  making  his 
business  reasonably  safe,  whereby  his  servants  suffered  damage.  Britton  v. 
Great  Western  Cotton  Co.,  L.  R.  7  Exch.  130. 

11  Gardiner,  J.,  in  Coon  v.  Sy.  &  Utica  Railroad  Co.,  1  Seld.  492;  s.  c.  6 
Barb.  231.  But  in  Gillshannon  v.  Stony  Brook  Railw.,  10  Cush.  228,  it  w;is 
held  to  make  no  difference  that  the  servants  were  not  in  a  common  employment. 
This  was  the  case  of  a  laborer  riding  upon  a  gravel  train  to  the  place  of  his  em- 
ployment, and  injured  by  the  negligence  of  those  in  charge  of  the  train.  In 
Wilson  v.  Merry,  Law  Rep.  1  11.  Lds.  326,  it  was  decided,  that  a  master  is  not 
responsible  for  injury  to  a  servant  caused  by  the  negligence  of  a  fellow-servant, 
by  the  mere  fact  that  the  latter  is  of  a  higher  grade,  as  a  superintendent  : 
S.  P.  Feltham  ».  England,  L.  K.  ~J  <,>.  B.  •">•'!.  Hut  in  Ilavncs  v.  East  Tenn.  & 
Ga.  Railw.,  3  Coldwell,  222,  a  somewhat  different  view  was  taken,  the  com- 
pany being  held  responsible  for  an  injury  to  one  of  the  subordinate  servants  by 
the  carelessness  of  the  superintendent  in  starling  a  train  at  an  unusual  hour. 
And  in  Frost  v.  Union  Pacific  Railw.,  1  1  Am.  Law  Reg.  (X.  S.)  I'M,  where  one 
servant,  by  the  direction  of  a  superior  servant,  undertook  to  do  an  act  not  in 
the  usual  course  of  his  employment  and  was  thereby  injured  through  the  negii- 

of  the  superior,  the  master  was  held  liable.  But  where  a  brakeman  was 
injured  by  the  negligence  of  workmen  in  repairing  the  track,  it  was  beld  they 
were  so  far  fellow-servants  that  he  could  not  recover.     Cooper  v.  M..  &  Prairie 

[*521] 


548  LIABILITY    FOR   CONTRACTORS,    AGENTS,    ETC.  PART  VI. 

tempted  to  be  maintained  is  one  of  policy  chiefly,  that  it  is  better 
to  throw  the  hazard  upon  those  in  whose  power  it  is  to  guard 
against  it,  it  seems  very  questionable  how  far  any  such  distinction 
is  maintainable.  It  has  been  attempted  in  a  good  many  cases,  but 
does  not  seem  to  have  met  with  favor. 

5.  And  the  rule  itself  has  been  denied  in  some  cases,  in  this 
country,  after  very  elaborate  consideration.12  And  it  has  been 
held  not  to  apply  to  the  case  of  slaves,13  especially  where  the  em- 
ployer stipulated  not  to  employ  them  about  the  engines  and  cars, 
unless  for  necessary  purposes  of  carrying  to  places  where  their 
services  were   needed,  and  they  were  carried  beyond  that  point, 

du  f'ii.  Railw.,  2:5  Wis.  668.  So,  too,  where  a  laborer  on  a  construction  train 
was  injured  by  the  engineer  backing  the  train  without  a  preliminary  signal,  it 
was  held  he  could  not  recover  of  the  company,  it  being  only  the  carelessness 
of  a  fellow-servant.     Chicago  &  Alton  Railw.  v.  Keefe,  47  111.  108. 

12  Little  Miami  Railw.  v.  Stevens,  20  Ohio,  415;  C.  C  &  C.  Railroad  Co. 
r.  Keary,  3  Ohio  (N.  S.),  202.  These  cases  are  placed  mainly  upon  the  ground 
of  the  person  injured  being  in  a  subordinate  position.  It  was  held  the  rule  did 
not  apply  to  day  laborers  upon  a  railway,  who  were  not  under  any  obligation  to 
renew  their  work  from  day  to  day,  where  one,  after  completing  his  day's  work, 
was  injured  through  the  negligence  of  the  conductor  of  one  of  the  company's 
train.-,  upon  which  he  was  returning  home,  free  of  charge,  but  as  part  of  the 
contract  upon  which  he  worked.  Russell  v.  Hudson  River  R.,  5  Duer,  39.  And  in 
Whaalan  v.  M.  R.  &  Lake  Erie  Railw.,  8  Ohio  (N.  S.),  249,  it  was  held  that  where 
one  of  the  employes  of  a  railway,  engaged  in  making  repairs  upon  its  track, 
was  injured  by  the  neglect  of  a  fireman  upon  one  of  the  trains,  there  was  no 
such  subordination  in  regard  to  their  duty  as  to  justify  any  departure  from  the 
general  rule  of  excusing  the  master.  See  also  Indianapolis  Railw.  v.  Love,  10 
Iiul.  554  :  Same  v.  Klein,  11  Ind.  88.  In  Hard,  Adm'r  v.  Vt.  &  Canada  Railw., 
32  Vt.  173,  the  plaintiff's  intestate,  who  was  an  engineer  on  the  defendant's  road, 
was  killed  by  the  explosion  of  a  locomotive  engine  which  he  was  running,  which 
occurred  by  the  neglect  of  the  company's  master-mechanic  in  not  keeping  the 
machine  in  repair,  it  was  his  duty  to  superintend  and  direct  the  repairs  upon 
the  engines.  The  directors  of  the  company  were  not  guilty  of  any  neglect  in 
furnishing  the  road,  in  the  first  instance,  with  suitable  machinery  and  competent 
employes,  and  they  were  ignorant  of  any  defect  in  this  engine.  The  company 
were  held  not  responsible  for  the  death  of  plaintiff's  intestate,  on  the  ground 
that  under  the  circumstances  the  injury  must  be  considered  as  occurring  from  the 
neglect  of  a  fellow-servant,  employed  in  the  same  common  business.  But  where 
a  stranger,  who  had  occasion  to  be  upon  the  company's  grounds,  was  injured  by 
the  explosion  of  defendant's  engine,  it  was  held  the  company  were  responsible, 
unless  tbey  could  show  that  the  explosion  occurred  without  their  fault.  I.  C. 
Railw.  v.  Phillips,  49  111.  234. 

13  Scudder  v.  Woodbridge,  1  Kelly,  195. 
[*521] 


§  131.  INJURIES   BY   FELLOW-SERVANTS.  549 

and  killed  in  jumping  from  the  cars.14  The  Court  of  Sessions  in 
*  Scotland,  too,  seems  to  have  dissented  from  the  English  rule 
upon  this  subject.15 

14  Duncan  r.  Railroad  Co..  2  Richardson,  613. 

13  Dixon  v.  Ranken,  1  Am.  Railw.  ('.  569.  The  remarks  of  Lord  Cockburn 
are  pointed  and  pertinent.  "The  English  decisions  certainly  seem  to  determine 
that  in  England,  where  a  person  is  injured  by  the  culpable  negligence  of  a  ser- 
vant, that  servants  master  is  liable  in  reparation,  provided  the  injured  person 
was  one  of  the  public,  but  that  he  is  not  responsible  if  the  person  so  injured 
happened  to  be  a  fellow-workman  of  the  delinquent  servant.  It  is  said,  as  an 
illustration  of  this,  that  if  a  coachman  kills  a  stranger  by  improper  driving,  the 
employer  of  the  coachman  is  liable,  but  that  he  is  not  liable  if  the  coachman 
only  kills  the  footman.  If  this  be  the  law  of  England,  I  speak  of  it  with  all 
due  respect,  it  most  certainly  is  not  the  law  of  Scotland.  I  defy  any  industry 
to  produce  a  single  decision  or  dictum,  or  institutional  indication,  or  any  trace 
of  any  authority  to  this  effect,  or  of  this  tendency,  from  the  whole  range  of 
our  law.  If  any  such  idea  exists  in  our  system,  it  has  as  yet  lurked  unde- 
tected. It  has  never  been  directly  condemned,  because  it  has  never  been  stated.'1 
After  citing  numerous  cases  in  their  reports,  where  the  question  was  involved 
but  not  raised,  his  lordship  continues  :  "The  new  rule  seemed  to  be  recommended 
to  us,  not  only  on  account  of  the  respect  due  to  the  foreign  tribunal,  —  the  weight 
of  which  we  all  acknowledge,  —  but  also  on  account  of  its  own  inherent  justice. 
This  last  recommendation  fails  with  me,  because.  I  think  that  the  justice  of  the 
thing  is  exactly  in  the  opposite  direction.  I  have  rarely  come  upon  any  principle 
that  seems  less  reconcilable  with  legal  reason.  I  can  conceive  some  reasoning  for 
exempting  the  employer  from  liability  altogether,  but  not  one  for  exempting  him 
only  when  those  who  act  for  him  injure  one  of  themselves.  It  rather  seems  to  me 
that  these  are  the  very  persons  who  have  the  strongest  claim  upon  him  for  repara- 
tion, because  they  incur  danger  on  his  account,  and  certainly  are  not  understood 
by  our  law  to  come  under  any  engagement  to  take  these  risks  on  themselves." 
But  the  English  cases  certainly  do  regard  the  servant  as  impliedly  stipulating 
to  run  these  risks  when  he  enters  into  the  service.  The  remarks  of  the  learned 
judge  above  ought  nut  perhaps  to  be  regarded  as  of  any  inherent  weight  here, 
beyond  the  mere  force  of  the  argument,  and  it  is  always  to  be  regretted  that  any 
difference  of  decision  should  exist  among  the  tribunals  of  the  different  >tates 
upon  a  subject  of  so  much  practical  moment.  The  great  preponderance  of 
authority  in  this  country  is  undoubtedly  in  favor  of  the  English  rule  ;  but  we 
coidd  not  forbear  to  state,  that  we  have  always  had  similar  difficulties  to  those 
stated  by  his  lordship,  in  regard  to  the  justice  or  policy  of  the  ride.  When  these 
cases  go  by  appeal  to  the  House  of  Lords,  they  are  determined  according  to  the 
rule  of  the  Scottish  law.  Marshall  v.  Stewart,  :'..*!  Eng.  L.  &  Eq.  1.  Opinion  of 
Cranworth,  Chancellor.  But  see  the  very  lucid  and  convincing  argument  of 
Shaw,  • '.  J.,  in  Farwell  v.  Boston  &  Wor.  Kailw.,  I  .Met.  lit,  ."it:  ;  s.  e.  1  Kedf.  Am. 
Railw.  ( !ases,  395  :  3.  C.  1  Am.  It.  C.  S39  ;  and  the  most  ingenious  attempt  at  re- 
d/uctio  ad  absurdum  upon  the  subject  1>\  Lord  Abinger,  C.  B.,  in  Priestly  v.  fowler, 
3  M.  &  W.  1,  G,  7,  where  the  learned  C.  B.,  among  other  ingenious  speculations, 

[*522] 


LIABILITY    FOR    CONTRACTORS,    AGENTS,    ETC.  PART  VI. 

Bui  it  has  been  held,  that  there  is  no  implied  obligation  on 
the  pari  of  a  ship-owner  towards  a  seaman,  who  agrees  to  serve 

Bupposes  Borne  fearful  consequences  might  follow  if  tlie  master  were  to  be  held  liable 
for  the  negligence  of  the  chamber-maid  in  putting  the  servant  into  wet  .sheets! 

Il  a  111:111  should  receive  damage  in  any  way  by  his  own  foolhardiness,'even 
where  a  fellow-servant  was  concerned  in  producing  the  result,  he  could  not  re- 
of  any  one  upon  the  most  obvious  grounds.  Some  discretion  and  reserve 
no  doubt  requisite  in  the  application  of  the  rule  of  the  servant's  right  to  re- 
r  for  the  default  of  his  fellow-servant,  but  whether  the  difficulty  of  its  appli- 
cation will  fairly  justify  its  abandonment,  would  seem  somewhat  questionable,  if 
the  thing  were  res  Integra,  which  it  certainly  is  not,  either  in  the  English  or 
American  law.  In  an  English  case,  in  the  Court  of  Exchequer,  11  Exch.  832; 
8  1  .  36  Eng.  L.  &  Eq.  186,  Wiggett  v.  Fox  et  al.,  the  court  adhere  to  the  rule 
laid  down  in  former  English  cases  upon  this  subject,  reiterating  the  same  reasons, 
with  the  qualification,  that  if  there  were  any  reason  for  holding  that  the  persons 
31  act  caused  the  injury  were  not  persons  of  ordinary  skill  and  care,  the  case 
would  be  different,  there  being  an  implied  obligation  upon  the  master  not  to  em- 
ploy such  persons.  With  this  qualification  there  seems  to  be  no  serious  objection 
to  the  English  rule  of  law  npon  this  subject.  Bassett  v.  Norwich  &  Nashua 
Railw.,  Superior  Court  of  Conn.  19  Law  Rep.  551.  In  a  case  in  the  Court  of 
Sessions  in  Scotland,  so  late  as  January,  1857,  the  court  repelled  a  plea,  founded 
on  the  claim  that  the  master  is  not  liable  to  a  servant  for  the  negligence  of  a 
fellow-servant.  The  Lord  Justice  Clerk  took  occasion  to  remark,  that  the  mas- 
ter's  liability  rested  upon  the  broad  principle,  that  an  employer  being  liable  to 
third  parties  for  injuries  caused  by  his  servants,  &  fortiori  he  is  liable  to  the  ser- 
vant for  injury  caused  by  another  servant.  But  for  injury  to  servants  through 
obvious  or  known  defects  of  machinery  in  the  use  of  the  master,  unknown  to  the 
servant,  but  which  the  employer  by  the  use  of  ordinary  care  could  have  cured, 
the  cases  all  agree  that  he  is  liable.  McGatrick  v.  Wason,  4  Ohio  (N.  S.),  566. 
In  the  Exchequer  Chamber,  so  late  as  May,  1857,  in  Roberts  v.  Smith,  29  Law 
Time-.  L69,  ii  was  held,  that  where  the  master  directs  the  conduct  of  the  servant, 
he  is  liable  for  any  injury  resulting  therefrom  to  the  other  servants.  See  also  Wey- 
ant  v.  N.  V.  iV-  Harlem  R.,  3  Duer,  360.  It  has  been  held  in  some  cases,  Scudder 
?■.  Woodbridge,  1  Ga.  195,  that  the  rule  that  the  master  is  not  liable  for  an  in- 
jury to  one  servant  inflicted  by  the  want  of  care  or  skill  in  a  fellow-servant,  does 
not  apply  to  the  case  of  slaves,  on  account  of  their  want  of  freedom  in  action  and 
choice  in  continuing  the  service  when  it  becomes  perilous.  But  if  an  exception 
Could  be  founded  upon  any  Mich  basis,  it  would  extend  to  all  the  subordinate  rela- 
tion- of  service,  as  has  sometimes  been  attempted.  But  where  the  injury  resulted 
iron,  the  habitual  negligence  of  the  engineer  of  a  boat,  whereby  the  slaves  per- 
ished,  by  the  bursting  of  a  boiler,  the  master  of  the  boat  is  liable,  and  the  same 
rule  applies  to  the  case  of  freemen.  Walker  v.  Boiling,  22  Ala.  294;  Cook  v. 
Parham,  24  Ala.  21.  The  court  here  were  equally  divided  upon  the  question, 
whether  the  general  rule  upon  this  subject  applied  to  the  case  of  a  slave  hired  on 
teamboat.  But  this  com)  subsequently  held,  on  general  principles,  that  where 
one  employs  a  mechanic  to  repair  a  building  which  is  in  a  rninous  state,  but  this 
is  not  known  to  the  workmen  and  not  disclosed  to  the  contractor,  the  employer 
[*523] 


§  131.  INJURIES    BY   FELLOW-SERVANTS.  551 

*on  board,  that  the  ship  is  seaworthy,  and  in  the  absence  of  any 
express  warranty  to  that  effect,  or  of  any  knowledge  of  the  defect, 
or  any  personal  blame  on  the  part  of  the  ship-owner,  the  seaman 
cannot  maintain  an  action,  by  reason  of  the  ship  becoming  leaky, 
and  his  being  obliged  to  undergo  extra  labor.10 

7.  But  a  carpenter  employed  by  a  railway  company  to  build  one 
of  their  bridges,  and  who  took  passage  in  their  cars,  by  their 
directions,  to  go  to  a  certain  point  for  the  purpose  of  loading 
timber  to  be  used  in  building  the  bridge,  and  who  was  injured  in 
the  course  of  the  passage  by  Jhe  negligent  conduct  of  the  train, 
is  entitled  to  recover  of  the  company,  the  plaintiff  having  no  par- 
ticular connection  with  the  conduct  of  the  business  in  which  he 
was  injured.17 

8.  The  English  courts  still  maintain  their  former  stand,  that  all 
the  servants  of  the  same  company  engaged  in  carrying  forward  the 
common  enterprise,  although  in  different  departments,  widely  sepa- 
rated, or  strictly  subordinated  to  others,  are  to  be  regarded  as 
fellow-servants,  bound  by  the  terms  of  their  employment  to  run 
the  hazard  of  any  negligence  or  wrong-doing  which  may  be  com- 
mitted by  any  of  the  number,  so  far  as  it  operates  to  their  detri- 
ment.    This  is  strikingly  illustrated  in  a  case  in  the   Common 

is  liable  for  all  injury  sustained  by  the  contractor  or  his  subordinates,  being  slaves 
in  this  case,  by  reason  of  the  peril  to  which  they  are  thus  fraudulently  exposed, 
but  that  he  will  not  be  held  so  liable  if  he  inform  the  contractor  of  the  peril  to 
which  he  is  exposed.     Perry  v.  Marsh,  25  Ala.  659. 

"  Couch  v.  Steel.  3  El.  &  Bl.  402;  s.  c.  24  Eng.  L.  &  Eq.  77.  But  if  the 
master  might  have  known  the  exposure  of  the  servant,  but  for  his  own  want  of 
ordinary  care,  as  in  the  use  of  a  defective  locomotive  engine,  which  exploded  and 
injured  the  servant,  through  defective  construction,  the  master  is  liable  for  the 
injury.  Noyes  v.  Smith,  28  Vt.  59.  But  where  the  danger  is  known  to  the 
servant  and  not  communicated 'to  the  superior,  or  master,  he  cannot  recover  for 
any  injury  he  may  sustain  in  consequence.  McMillan  v.  Saratoga  &Wash.  B,., 
20  Barb.  449 ;  Hubgh  v.  N.  O.  &  C.  Bailw.,  6  La.  An.  495. 

17  Gillenwater  v.  Mad.  &  Ind.  Railw.,  5  Ind.  340;  s.  p.  O'Donnell  v.  Alle- 
ghany Valley  Bailw.,  59  Penn.  St.  239.  And  where  laborers  upon  a  railway 
were  transported  to  and  from  their  labor  and  meals  upon  the  gravel  trains  of  the 
company,  which  they  were  employed  in  loading  and  unloading,  but  had  no  agency 
in  managing,  and  in  such  transportation,  by  the  gross  negligence  and  unskilful- 
ness  of  the  engineer,  were  injured,  it  was  held  the  company  were  liable.  Fitz- 
patrick  v.  New  Albany  &  Salem  Bailw.,  7  Porter  (Ind.),  436.  But  not  where  the 
servant  is  in  fault  in  attempting  to  get  upon  the  train  when  in  motion.  Timmons 
v.  The  Central  Ohio  Bailw.,  6  Ohio  (N.  S.),  105. 

[*524] 


LIABILITY    FOR   CONTRACTORS,    AGENTS,    ETC.  PART  VI. 

'  Pleas,18  where  it  was  held  that  one  employed  to  pick  up  stones 
from  off  the  defendant's  line,  and  who,  while  returning  in  the 
evening,  after  his  work  was  over,  in  a  train  driven  hy  the  defendant's 
servants,  was  injured  by  a  collision  caused  by  the  negligence  of 
those  who  had  charge  of  the  train,  it  being  one  of  the  terms  of  the 
contract  of  hiring  that  he  should  return  in  the  defendant's  train, 
could  not  recover  damages  of  the  company,  as  he  and  the  person 
guilty  of  the  negligence  resulting  in  the  injury  were  fellow-servants 
engaged  in  a  common  employment,  within  the  meaning  of  the  rule 
of  law  applicable  to  the  case.  • 

9.  This  whole  question  is  very  elaborately  reviewed  in  a  case 
in  Kentucky,19  which  we  shall  here  repeat,  together  with  our  own 
comments  at  the  time  upon  the  several  propositions  embraced 
in  the  opinion,  at  the  risk  of  some  repetition,  perhaps.  Where  an 
employe'  upon  a  railway  is  injured  by  the  negligence  of  the  en- 
gineer of  the  company,  and  is  himself  guilty  only  of  such  neglect 
and  want  of  care  as  would  not  have  exposed  him  to  the  injury  but 
for  the  gross  neglect  of  the  engineer,  and  when  the  engineer  might 
with  ordinary  care  have  avoided  the  injury,  he  is  not  precluded 
from  maintaining  his  action.  What  is  gross  neglect  in  the  engineer 
may  be  determined  by  the  court,  as  a  question  of  law,  where  there 
is  no  controversy  in  regard  to  the  facts.  In  regard  to  those  acts 
of  a  corporation  which  require  care,  diligence,  and  judgment,  and 
which  it  performs  through  the  instrumentality  of  general  superin- 
tending agents,  the  corporation  itself  is  to  be  regarded  as  always 
present,  supervising  the  action  of  its  agents.  The  rule  of  law, 
that  the  master  is  not  responsible  to  one  of  his  servants  for  an 
injury  inflicted  through  the  neglect  of  a  fellow-servant,  is  not 
adopted,  to  the  full  extent  of  the  English  decisions,  in  the  State  of 
Kentucky.  The  rule  is  there  regarded  as  anomalous,  inconsistent 
with  principle,  analogy,  and  public  policy,  and  unsupported  by  any 
good  or  consistent  reason.  In  regard  to  all  servants  of  the  com- 
pany acting  in  a  subordinate  sphere,  the  one  class  to  another,  and 
receiving  injuries  while  in  the  performance  of  duties,  under  the 
command  of  a  superior,  whose  authority  they  have  no  right  to 
disobey  or  disregard,  it  is  the  same  *  precisely  as  if  the  injury  were 

18  Tunney  v.  Midland  Railw.  Co.,  Law  Rep.  1  C.  P.  291 ;  s.  c.  12  Jur.  (N.  S.) 
691. 

19  Louisville  &  Nashville  Railw.  v.  Collins,  5  Am.  Law  Reg.  (N.  S.)  265 ; 
s.  c.  2  Duvall,  114. 

[*525,526] 


§  131.  INJURIES   BY   FELLOW-SERVANTS.  553 

inflicted  by  the  act  of  the  company  ;  and  if  there  is  any  want  of 
care  and  skill  in  the  superior,  such  as  his  position  and  duty  reason- 
ably demand,  the  company  are  responsible.  In  such  cases  there 
is  no  implied  undertaking  on  the  part  of  the  servant  to  risk  the 
consequences  of  the  misconduct  of  the  agent  of  the  company  under 
whose  authority  he  acted,  and  through  whose  negligence  he  re- 
ceived the  injury.  Servants  so  situated,  in  distinct  grades  of 
superiority  and  subordination,  are  not  to  be  considered  as  "  fellow- 
servants,"  or  "  in  the  same  service  ; "  but  rather  in  the  light  of 
strangers  to  each  other's  duties  and  responsibilities ;  and  the  sub- 
ordinate may  recover  of  the  company  for  any  injury  sustained  by 
reason  of  the  ordinary  neglect  of  the  superior.  But  if  the  subordi- 
nate is  himself  guilty  of  any  want  of  ordinary  care,  whereby  he  is 
more  exposed  to  the  injury,  he  cannot  recover,  unless  the  superior 
was  guilty  of  wilful  misconduct  or  gross  neglect,  but  for  which  he 
might  have  avoided  inflicting  the  injury,  notwithstanding  the  negli- 
gence of  the  other  party.  Where,  therefore,  an  engineer,  while 
upon  his  engine,  ordered  a  common  laborer  to  do  some  needed 
work  under  the  engine,  in  fastening  bolts  or  screws  belonging  to 
it ;  and  such  workman,  while  lying  upon  his  back  in  the  perform- 
ance of  the  service,  had  both  his  legs  cut  off  by  the  movement  of 
the  engine  forward  and  backward,  through  the  gross  neglect  or 
wilful  misconduct  of  such  engineer,  the  company  are  responsible 
for  the  injury,  notwithstanding  there  might  have  been  some  want 
of  ordinary  care  on  the  part  of  the  subordinate,  contributing  to 
some  extent  to  the  injury,  but  not  necessitating  it,  except  through 
the  gross  misconduct  of  the  superior.  Per  Robertson,  0.  J.  — We 
do  not  consider  that  the  rule  exempting  the  company  from  respon- 
sibility for  injuries  inflicted  upon  their  servants,  through  the  want 
of  ordinary  care  in  other  servants  of  the  company,  extends  beyond 
those  who  are  "  strictly  fellow-servants "  in  the  same  grade  of 
employment,  and  where  one  is  not  subject  to  the  order  or  control 
of  the  others.  Beyond  this  the  company  is  responsible  for  the  con- 
sequences of  the  misconduct  of  superiors  towards  inferiors  in  its 
service,  the  same  as  towards  strangers.20 

20  We  have  presented  a  very  extended  syllabus  of  the  foregoing  case,  em- 
bracing all  the  points  upon  which  the  opinion  of  the  court  is  given,  without 
regard  to  their  being  directly  and  necessarily  involved  in  the  decision  of  the 
cause.  And  notwithstanding  the  avowed  willingness  of  the  learned  judge  to  dis- 
regard the  general  current  of  authority  upon  the  point,  and  the  apparent  spirit  of 

[*52b] 


.r,:,|  LIABILITY    FOR    CONTRACTORS,    AGENTS,    ETC.  PART  VT. 

*10.  The  question  is  again  reviewed  by  the  same  learned  judge 
who   gave   the  veidely-admired   opinion   in   Farwell  v.    Boston  & 

freedom  with  which  he  deals  with  the  decisions  in  oilier  states  and  countries, — 
notwithstanding  all  tliis,  and  more  thai  mighl  be  fairly  said  as  to  the  fearlessness 
and  disregard  of  self  with  which  the  opinion  abounds,  which  is  not  altogether 
common  in  dealing  with  the  opinions  of  such  men  as  Lord  Abinger  and  Chief 
Justice  Shaw,  and  a  host  of  others  scarcely  less  eminent  in  their  Held  of  service; 
notwithstanding  all  this,  which  has  rather  surprised  us,  we  must  confess,  at  the 
Bame  time  thai  we  could  not  but  regard  it  as  a  refreshing  exception  to  the  pro- 
verbial subserviency  of  opinion  to  precedent  and  analogy,  wo  liave  nevertheless 
felt  compelled  to  the  conclusion  that  the  opinion  is  altogether  and  entirely  sound 
in  iis  principles,  and  maintained  with  very  uncommon  ability  in  its  logic  as  well 
illustrations,  both  of  which  seem  altogether  unexceptionable.  But  we  must 
warn  those  members  of  the  profession  who  are  not  altogether  aware  of  the  extent, 
of  the  decisions  in  the  opposite  direction,  that  they  embrace  a  very  large  number 
of  fhe  best-considered  English  cases,  and  an  equal  number,  almost,  in  the  Amer- 
ican states;  including  all,  as  Car  as  we  know,  with  the  exception  of  Ohio,  and 

Georgia,   and   now    Kentucky.      And    the  decisions    in   these;   latter    states  are  all 
attempted  to  be  placed  upon  peculiar  grounds,  thereby  virtually  confessing  the 

i  Iness  of  the  general  rule,  that  one  cannot  recover  of  his  employer  for  an 
injury  inflicted  through  the  want  of  care  in  a  fellow-servant,  employed  in  the  ' 
same  department  of  the  master's  business,  and  under  the  same  general  control. 
This  is  declared  by  the  Learned  judge  in  the  case  last  cited.  The  opinion  in  the 
case  would  have  been  far  more  satisfactory  if  the  learned  judge  could  have  de- 
voted more  time  and  labor  to  the  matter.  If  a  careful  review  of  the  preceding 
.  with  the  reasoning  of  the  judges,  could  have  been  presented  in  the  very 
Carefully  prepared  opinion,  it  could  not,  have  failed  to  be  more,  valuable.  Dis- 
cussion of  a  broad  principle  is  much  less  expensive  to  the  author,  and  far  less 
satisfactory,  as  a  general  thing,  to  the  profession,  than  a  careful  review  of  the 
We  should  not  expect,  our  readers  would  here  listen  to  such  an  attempt, 
on  our  part,  since  it  must  occupy  considerable  space,  and  would  be  merely  pro- 
fessional,  instead  of  being  clothed  with  the  weight  of  judicial  authority.  But  we 
have  noticed  with  gratification,  more  for  the  justice  of  the  view  than  because  we 
had  before  contended  for  the  same,  that  the  learned  judge  declares  most  unequiv- 
ocally, that  the  corporation  is  to  be  regarded  as  constructively  present  in  all  acts 
performed  by  its  general  agents  within  the  scope  of  their  authority,  i.  e.  within  the 
range  of  their  ordinary  employment.  The  consequences  of  mistake  or  misappre- 
hension, upon  this  point,  have  led  many  courts  into  conclusions  greatly  at  variance 
with  the  common  instincts  of  reason  and  humanity,  and  have  tended  to  inter- 
pose an  unwarrantable  shield  between  the  conduct  of  railway  employes  and  the 
ju-t  responsibility  of  the  company.  'We  trust  that  the  reasonableness  and  justice 
"I  tlii  construction  will  at  no  distant  day  induce  its  universal  adoption.  See 
■  §   130,  pi.  6,  7,  8,  9,  and  notes,  and  cases  cited. 

In  regard  to  the  Leading  point  involved  in  the  Kentucky  case,  how  far  a  servant 
is  entitled  to  recover  of  the  master  for  an  injury  inflicted  by  the  negligence  or 
want  of  skill  of  a  fellow-servant,  the  doctrine  of  exemption  was  first  established 

in  the  Court  of  Exchequer  in  Priestly  v.  Fowler,  8  M.  &  W.   1,  which  was 
[•527] 


§181.  INJURIES    BY   FELLOW-SERVANTS.  555 

*  Worcester  Railway,  in  a  later  ease,-'  and  the  following  propositions 
maintained.     A  carpenter  employed  l>y  the  day  by  a  railway  cor- 

decided  at  Michaelmas  Term,  1887.  The  same  rule  was  adopted  in  this  country 
by  the  Supreme  Judicial  Courl  of  Massachusetts,  in  Farwell  p.  The  Boston  & 
Worcester  Railroad  <  'orporation,  I  Mel .  l!>,  at  the  March  Term,  1842,  supported 
by  one  of  the  ablest  and  most  unexceptionable  opinions  ever  delivered  from  the 
American  Bench,  —  an  opinion  which  has  commanded  the  admiral  ion  of  the  entire 
profession,  both  Bench  and  Bar,  in  England  as  well  as  in  America;  and  which 
has  been  mure  extensively  adopted  and  formally  incorporated  into  the  opinions 
of  the  English  courts  than  perhaps  any  oilier  opinion  of  an  American  judge. 
This  opinion  was  in  fact  preceded  by  thai  of  Murray  p.  The  South  Carolina 
Railw.  Co.,  1  McMullan,  385,  in  the  same  direction;  but  the  former  has  been 
regarded  as  the  leading  American  case.  These  leading  opinions,  in  the  different 
countries,  have  been  followed  by  a  multitude  of  eases  reaching  down  to  the 
presenl  time,  most  of  them  occupied  in  the  discussion  of  what  were  claimed  to 
be  exceptional  cases.  In  England,  we  may,  among  a  multitude  of  others,  refer 
to  Hutchinson  p.  York,  Newcastle  &  Berwick  Railw.,  5  Exch.  343;  Wigmore  v. 
Jay,  ill.  354;  Skip  p.  Eastern  Counties  Railw.,  9  Exch.  223;  a  c,  24  Eng.  L. 
&  Eq.  396;  Degg  V.  Midland  Railw.,  1  Hurlst.  &  N.  773;  Tarrant  p.  Webb, 
is  ('.  IJ.  7H7;  s.  v..  :\7  Eng.  L.  &  Eq.  28!  ;  Mellors  p.  Shaw,  1  B.  &  S.  137; 
s.  c.  7  Jur.  (N.  S.)  845;  Seymour  p.  Maddox,  16  Q.  15.  326;  Ormond  p.  Hol- 
land, 1  El.,  !>1.  &  Ellis,  11*2.  In  the  American  states  the  decisions  are  consider- 
ably numerous  where  the  general  principle  of  the  foregoing  decisions  lias  been 
ailed  upon,  or  recognized,  hut  we  shall  not  refer  to  more  than  will  be  requisite 
to  show  how  far  the  rule  prevails  in  different  states.  It  is  adopted  in  Brown  P. 
Maxwell,  6  Hill  (N.  Y.),  592;  Coon  r.  Syracuse  &  Utica  Railw.,  6  Barb.  231  ; 
8.  C.  1  Selden,  492,  and  numerous  other  New  York  eases  cited,  ante,  §  131. 
See  also  Honner  V.  111.  Central  Railw.,  15  111.  550;  Ryan  p.  Cumberland  Valley 
Railw.,  23  Penn.  St.  384;  Madison  &  Indianapolis  Railw.  p.  Bacon,  6  Porter 
(Ind.),  205;  Sawley  v.  Baltimore  &  Ohio  Railw.,  6  Am.  Law.  Reg.  :i.")2; 
Era/.ier  v.  Pennsylvania  Railw.  Co.,  38  Penn.  St.  L04;  Wright  p.  New  York 
Central  Railw.,  28  Barb.  80;  Carle  p.  B.  &  P.  < 'anal  &  Railw.  Co.,  18  Maine, 
269;    Noves  v.  Smith,  28  Vt.  59;    Indianapolis   Railw.  p.   Love,  10  Indiana,  554  ; 

Same  v.  Klein,  ii    id.  38.     The 'general  principle   is  adopted  in  all  tl ther 

slates  where  the  question  has  arisen;  for  although  in  Ohio,  in  the  cases  of  Little 
Miami  Railw.  <  !o.  r.  Stevens,  20  Ohio,  I  |.">,  and  C.  C.  &  < '.  Railw.  Co.  P.  Kcarv, 
8  Ohio  (X.  S.),  201,  the  companies  are  held  responsible  for  the  injury,  the  deci- 
sions are  placed  upon  the  ground,  that  the  persons  injured  were  in  subordinate 

position-.  And  in  Seudder  V.  Woodbridge,  1  Kelly,  195,  it  was  held  the  rule 
did  nol  excuse  the  master  for  injury  thus  caused  to  slaves,  mainly  upon  the  same 
ground  of  their  dependent  and  subordinate  positions.      And  the  Kentucky  case  is 

placed  upon  the  same  ground.  And  in  the  more  recent,  case  of  Whaalan  P. 
Mad.  R.  &  Lake  Erie  Railw.  Co.,  8  Ohio  (\.  S.),  249,  it  was  held,  thai  where 
one    of  the    trackmen    was    injured    by    neglect    of  the    fireman    upon   one  of  the 


21  Seaver  »   Boston  &  M.  Railw.  Co.,  1 1  Gray,  460. 

[*528] 


5oG  LIABILITY    FOR    CONTRACTORS,    AGENTS,    ETC.  PART  VI. 

poration  *  to  work  on  the  line  of  their  road,  and  carried  on  the  cars 
to  the  place  of  such  work  without  paying  fare,  cannot  maintain  an 

trains,  there  wis  no  such  subordination  of  position  as  to  take  the  case  out  of  the 
general  rule,  and  the  case  was  decided  in  favor  of  the  company  ;  thus  maintaining 
tin-  soundness  of  the  general  rule  in  thai  state  by  its  latest  decision.  The  Kentucky 
courts  do  not  seem  to  hold  the  master  excused  in  such  cases,  unless  the  fellow- 
servant  by  whose  act  or  omission  the  injury  occurs,  is  competent,  for  his  duty 
and  reasonably  diligent  in  its  performance.  Louisv.  &  Nashv.  Raihv.  v.  Felbern, 
6  Bush,  -~>7I.  Hut  the  fact  that  there  is  a  safer  mode  of  constructing  machinery  is 
on  ground  of  charging  the  master.  Wonder  r.  Halt.  &  Ohio  Railw.,  32  Md.  411. 
It  is  safe,  therefore,  to  state,  that  all  the  cases,  both  English  and  American, 
maintain  the  general  rule  to  the  extent  of  those  who  are  strictly  "fellow-ser- 
vants "  in  the  same  department  of  service.  And  where  this  is  not  the  fact,  but 
the  employe's  are  so  far  removed  from  each  other  that  the  one  is  bound  to  obey 
the  directions  of  the  other,  so  that  the  superior  may  be  fairly  regarded  as  rep- 
resenting  the  master,  we  think  it  more  consonant  with  reason  and  justice  to 
treat  the  matter  as  not  coming  within  the  principle  of  the  rule.  This  is  so 
declared  by  Gardiner,  J.,  in  Coon  v.  Syracuse  &  Utica  Railroad  Co.,  1  Selden, 
492.  But  this  qualification  is  denied  by  Shaw,  C.  J.,  in  Farwell  v.  Boston  & 
Wor  lester  Railw.,  4  Met.  49,  GO,  61,  unless  the  departments  of  service  are  so  far 
independent  as  to  have  no  privity  with  each  other,  not  being  under  the  control 
of  a  common  master.  And  it  was  so  decided  in  Gillshannon  v.  Stony  Hrook 
Railw.  Co.,  10  Cush.  228.  And  it  seems  finally  to  be  settled  upon  authority, 
that  it  is  sufficient  to  bring  the  case  within  the  rule,  that  the  servants  are 
employed  in  the  same  common  service,  as  in  running  a  railway,  or  working  a 
mine.  Wright  v.  New  York  Central  Railw.,  25  N.  Y.  552,  564,  by  Allen,  J. 
The  question  is  whether  they  are  under  the  same  general  control.  Abraham  v. 
Reynolds,  5  H.  &  N.  142  ;  Hard,  AdmV  v.  Vermont  &  Canada  Railroad,  32 
Vt.  473.  And  there  is  no  question  that  the  master  is  responsible  for  any  want 
of  skill  or  care  in  employing  competent  and  trustworthy  servants,  and  in  suffi- 
cient numbers ;  and  in  furnishing  safe  and  suitable  machinery  for  the  work  in 
hand,  unless  the  servants,  knowing,  or  having  the  means  of  knowing,  of  the 
deficiency  in  furnishing  proper  help  or  machinery,  consent  to  continue  in  the 
employment.  And  the  neglect  or  want  of  skill  of  the  master's  general  agent 
employed  in  procuring  help  and  machinery,  is  the  act  of  the  master.  Hard  v. 
Vermont  &  Canada  Railw.  Co.,  supra  ;  Wiggett  v.  Fox,  36  Eng.  L.  &  Eq.  486  ; 
11  Exch.  832;  Noyes  v.  Smith,  28  Vt.  59.  Indeed  this  exception  is  recognized 
in  most  of  the  preceding  cases.  Many  of  the  late  cases  upon  the  question  have 
turned  upon  this  point,  the  general  rule  having  been  regarded  as  settled  beyond 
question  for  many  yens.  We  are  not  disposed  to  question  the  extent  of  the 
exceptions  to  the  general  rule  ;  and  possibly  any  greater  extension  in  that  direc- 
tion might  essentially  impair  the  general  benefit  to  be  derived  from  it.  Hut  we 
would  he  content  to  treat  all  the  subordinates  who  were  under  the  control  of  a 
Buperior  as  entitled  to  hold  such  superior  as  representing  the  master,  and  the 
master  as  responsible  for  his  incompetency  or  misconduct.  We  should  regard 
this  as  a  more  salutary  rule,  upon  the  whole,  than  the  present  one;  but  the  gen- 
eral current  of  authority  seems  greatly  in  the  opposite  direction. 

[*529] 


§  131.  INJURIES   BY   FELLOW-SERVANTS.  557 

*  action  against  the  corporation  for  injuries  received  while  being  so 
carried,  by  the  negligence  of  the  engineer  employed  by  them  for 
that  service,  or  by  a  hidden  defect  in  the  axle,  the  failure  to  dis- 
cover which,  if  discoverable,  was  occasioned  by  the  negligence  of 
servants  of  the  corporation,  whose  duty  it  was  to  examine  and 
keep  in  repair  the  cars,  engines,  and  axles.  In  such  a  case,  if  the 
company  exercised  reasonable  care  in  providing  and  using  the 
machinery,  in  the  use  of  which  the  plaintiff  was  so  injured,  they 
are  not  responsible  for  the  injury. 

11.  And  in  a  later  case22  before  the  same  court,  where  a  servant 
was  accidentally  hurt  by  an  engine  running  upon  him  from  the 
turn-table,  through  some  defect  in  the  brake,  it  was  held  competent 
for  the  company  to  show  in  defence  that  the  person  having  charge 
of  all  the  engines  upon  the  road  had  given  instructions  to  the  en- 
gineers to  have  the  wheels  of  their  engines  blocked  while  turning 
upon  the  turn-table,  and  that  the  accident  occurred  in  consequence 
of  some  servant  neglecting  such  instructions,  although  the  instruc- 
tions had  not  been  communicated  to  the  plaintiff. 

12.  But  the  servants  of  one  railway  company  are  not  fellow- 
servants  with  the  servants  of  another  company  who  use  the  same 
station  with  the  first  company,  and  while  those  are  subject  to  the 
direction  of  the  station-master  of  that  company,  and  the  second 
company  is  responsible  for  an  injury  to  one  of  the  servants  of  the 
first  company,  by  the  negligence  of  their  engine-driver.23 

13.  Although  a  railway  company  is  not  responsible  to  one  whom 
they  employ  to  repair  their  cars,  for  any  hurt  he  may  receive  in 
passing  upon  the  company's  cars  to  and  from  his  work,  free  of 
charge,  through  the  misconduct  of  a  switchman,  provided  the  com- 
pany were  not  in  fault  in  his  selection  or  retainer  ;  but,  if  he  were 
an  habitual  drunkard,  and  that  known  to  the  company,  or  might 
have  been  known  but  for  their  own  neglect  to  make  proper  inspec- 
tion of  their  business,  and  the  injury  resulted  from  this  intoxica- 
tion, the  testimony  is  proper  to  be  submitted  to  the  jury,  as  tending 
to  show  culpable  neglect  on  the  part  of  the  company.24     And  when 

*  this  case  was  before  the  court,  at  another  time,25  it  was  held  that 
a  verdict  for  the  plaintiff  will  not  be  disturbed  in  such  a  case,  be- 

•    22  Durgin  v.  Munson,  9  Allen,  396. 
23  Warburton  v.  Great  Western  Railw.,  L.  R.  2  Exch.  30. 
'-''  Gilman  v.  Eastern  Railw.,  10  Allen,  2:'>3. 
25   13  Allen,  4S3. 

[*530,  531] 


LIABILITY    FOR   CONTRACTORS,    AGENTS,    ETC. 


PART  VI. 


cause  it  was.  by  the  order  of  the  company,  the  regular  business  of 
another  servanl  of  the  company  to  manage  the  switch,  and  on  this 
occasion  it  was  wrongly  adjusted  by  the  flagman,  who  was  an 
habitual  drunkard,  ami  had  usually  been  intrusted  with  the  man- 
nnit  of  the  switch,  and  that  his  habits  were  known,  or  by  the 
of  proper  care  would  have  been  known,  to  the  corporation. 
Nor  will  ii  excuse  the  company  that  due  care  was  exercised  in  the 
original  selection  of  such  flagman,  and  that  a  proper  local  agent 
had  been  employed  by  the  company  with  authority  to  hire  and  su- 
perintend such  servants  of  the  company  as  may  be  necessary.  It 
was  also  held  here  that  evidence  that  the  flagman  was  commonly 
reputed  to  be  an  habitual  drunkard,  in  the  place  where  he  lived, 
was  competent  evidence  for  the  jury  as  tending  to  show  that  his 
intemperate  habits  should  have  been  known  to  the  officers  of  the 
company. 

14.  Where  the  negligence  of  the  employer  and  of  a  fellow-servant 
concur  in  producing  the  injury,  the  employer  is  liable ;  as  where 
insufficient  trestle-work  had  been  built  over  a  chasm  and  the  en- 
gineer was  directed  not  to  run  his  engine  upon  it,  but  nevertheless 
did,  and  the  fireman  was  killed  by  the  failure  of  the  trestle-work, 
the  company  was  held  responsible.26 


SECTION    IIIo. 


Proof  of  Negligence,  Sfc. 


1.  II  In  re  a  passenger  is  injured  on  a  rail- 
way the  prima  facie  presumption  is,  that 
it  resulted  from  thi  want  of  due  care. on 
tlie  part  of  the  company. 

.  nevertheless,  it  is  competent  to  prove 
the  damage  occurred  without  their  fault. 


'6.  One  who  rides  upon  a  free  pass,  or  in  the 
baggage-car,  is  not  thereby  deprived  of 
his  remedy  against  the  company  for  in- 
juries received  through  their  want  of  due 
care,  providi  d  he  was  at  the  time  a  pas- 
senger and  without  fault  on  his  own  part. 


§  131  a.  The  following  propositions  were  declared  by  the  Su- 
Court  of  Missouri,  in  the  case  of  Hannibal  and  St.  Joseph 
Railroad  Company  v.  Hattie  Higgins,  by  Eliza  Higgins,  her  guar- 
dian :  1  — 

1.  The  statute  of  Missouri  giving  a  remedy  to  the  representa- 

-'•  Paulmie  v.  Erie  Railw.,  5  Vrooni,  151. 

1  5  Am.  Law  Reg.  (N.  S.),  715-721;  s.  c.  36  Mo.  418. 

[*531] 


§  131  a.  PROOF    OP    NEGLIGENCE,    ETC.  559 

tives  of  a  passenger  killed  upon  a  railway  train,  goes  upon  the 
same  principle  which  before  obtained  in  regard  to  injuries  to 
passengers,  that  such  injury  or  death  prima  facie  results  from  want 
of  due  care  in  the  company. 

2.  The  presumption  is  not  conclusive  under  the  statute,  but 
*  may  be  rebutted  by  evidence  of  the  cause  of  the  injury.  One 
who  had  been  in  the  employment  of  the  company  as  an  engineer 
and  brakeman,  until  his  train  was  discontinued  a  few  days  pre- 
vious, and  who  had  not  been  settled  with  or  discharged,  although 
not  actually  under  pay  at  the  time,  and  who  signalled  the  train 
to  take  him  up,  and  who  took  his  seat  in  the  baggage-car  with 
the  other  employe's  of  the  company,  and  paid  no  fare  and  was 
not  expected  to,  although  at  the  time  in  pursuit  of  other  employ- 
ment, cannot  be  considered  a  passenger.  If  he  would  secure  the 
immunities  and  rights  of  a  passenger,  he  should  have  paid  his  fare 
and  taken  a  seat  in  the  passenger-car. 

3.  It  will  not  deprive  of  his  remedy  a  passenger  who  comes 
upon  the  train  in  that  character,  and  is  so  received,  that  he  is 
allowed  as  matter  of  courtesy  to  pass  free,  or  to  ride  with  the 
employes  of  the  road  in  the  baggage-car.  But  a  passenger  who 
leaves  the  passenger  carriages  to  go  upon  the  platforms  or  into 
the  baggage-car,  unless  compelled  to  do  so  for  want  of  proper 
accommodations  in  the  passenger  carriages,  or  else  by  permission 
of  the  conductor  of  the  train,  must  be  regarded  as  depriving 
himself  of  the  ordinary  remedies  against  the  company  for  injuries 
received,  unless  upon  proof  that  his  change  of  position  did  not 
conduce  to  the  injury.2 

2  The  opinion  in  the  case  last  cited  seems  to  us  to  present  several  interesting 
practical  points,  in  a  very  judicious  and  sensible  light.  It  is  sometimes  difficult 
to  deteimine,  with  exact  precision,  when  a  person  ceases  to  be  an  employe  of 
the  road  and  becomes  a  passenger.  There  is  perhaps  no  fairer  test  than  the  one 
presented  in  this  case,  to  allow  his  own  claim  and  conduct  at  the  time,  and  the 
acquiescence  of  the  company,  to  determine  that  question.  At  the  time,  one 
who  has  recently  been  in  the  employment  of  the  company  has  a  motive  to  claim 
the  privileges  of  the  employment,  by  passing  without  the  payment  of  fare.  And 
if  he  claims  the  privilege,  and  it  is  acceded  to  by  the  officers  of  the  company, 
there  is  great  injustice  in  allowing  the  person  at  the  same  time  to  hold  the  com- 
pany to  the  higher  responsibility  which  it  owes  to  passengers,  from  whom  it 
derives  revenue.  It  should  therefore  be  made  to  appear,  that  one  who  passes 
in  the  character  of  an  employe  of  the  road  was  really  a  passenger,  before  he 
can  fairly  be  allowed  to  demand  the  indemnity  which  passengers  may  by  law 
require.      If  the  person  assumes  one  character  for  his  advantage,  and  the  com- 

[*532] 


560 


LIABILITY    FOR    CONTRACTORS,    AGENTS,   ETC.  PART  VI. 


♦SECTION   IV. 


Injuries  by  Defect*  in  Highways  caused  by  Company's  Works. 


1     l  injuries  caused  by  leaving  streets 

in  insecure  condition. 

•J..  Municipalities  Untile  primarily  to  lrav<  Hers 

suffi  ring  injury. 

may  rt  con  r  indi  mnity  of  the  company. 
I.    /    wis   liable   to   indictment.      Company 

liable  to  mandamus  or  action. 
5.   Construction  of  a  grant  to  use  streets  of  a 

city. 
i'i.  Such  ijrant  does  not  give  the  public  any 

right  to  use  the  trucks. 


7.  Bound  to  keep  highways  in  repair. 

S.  Municipalities  not  responsible  for  injuries 
by  such  grant. 

9.  Canal  company  not  excused  from  main- 
taining farm  accommodations  by  rail- 
way interference. 

10.  Railway  track  crossing  private  way. 

11.  One  being  wrong-doer  in  opening  compa- 

ny's gates  cannot  recover. 


§  132.  1.  Where  a  public  company  has  the  right,  by  law,  of 
taking  up  the  pavement  of  the  street,  the  workmen  they  employ 
*are  bound  to  use  such  care  and  caution  in  doing  the  work  as  will 
protect   the    king's    subjects,    themselves   using    reasonable    care, 

*  from  injury.  And  if  they  so  lay  the  stones  as  to  give  such  an 
appearance  of  security  as  would  induce  a  careful  person,  using 

*  reasonable  caution,  to  tread  upon  them,  as  safe,  when  in  fact 
they  are  not  so,  the  company  will  be  answerable  in  damages  for 
any  injury  such  person  may  sustain  in  consequence.1 

*  And  in  a  more  recent  case,2  a  canal  and  railway  company,  as 
early  as  the  28  Geo.  2,  had  acquired  the  right,  by  act  of  parlia- 
ment, to  construct  a  canal  and  take  tolls  thereon,  and  had  built 
the  same  across  an  ancient  highway  near  St.  Helens,  a  small 
village,  and  had  made  a  swivel  bridge  across  the  canal  for  the 

pany  accede  to  the  claim,  he  ought  not  to  be  allowed  the  benefits  of  any  other 
character,  unless  it  is  very  clear  such  was  his  real  position,  and  that  this  was 
understood  by  the  company.  The  effect  of  free  passes,  and  of  the  passenger 
licing  out  of  his  place  in  the  carriages,  is  very  fairly  presented,  as  it  seems  to 
08,  in  the  opinion  in  this  case,  and  the  principal  cases  are  referred  to  upon  all  the 
points. 

1  1  )rew  v.  The  New  River  Co.,  6  Carr.  &  P.  754.  And  where  a  railway  com- 
pany, in  carrying  its  track  across  a  street,  left  the  crossing  in  such  a  state  that  the 
plaintiff's  horse's  t'uot  was  caught  in  the  crossing  and  badly  injured,  the  company 
were  held  responsible,  and  the  fact  that  the  crossing  was  made  in  compliance  with 
a  city  ordinance  and  to  the  acceptance  of  the  city  engineer,  as  therein  required, 
affords  no  ground  of  defence.     Dedzell  v.  Ind.  &  Cin.  Railw.,  32  Ind.  45. 

■  Manley  v.  The  St.  Helens  Canal  &  Railw.  Co.,  2  H.  &  N.  810. 
[*533-5o7] 


§  132.      DEFECTS   IN    HIGHWAYS   CAUSED   BY   COMPANY'S   WORKS.      561 

passage  of  the  highway ;  and  by  subsequent  acts,  reciting  the 
existence  of  such  works,  all  persons  were  to  have  free  liberty 
with  boats  to  navigate  the  canal  for  the  transportation  of  goods, 
and  penalties  were  imposed  upon  such  persons  as  should  leave  open 
the  drawbridges.  The  company  maintained  the  works  and  re- 
ceived a  toll  from  all  others  using  them.  A  boatman  having 
opened  the  swivel  bridge,  to  allow  his  boat  to  pass  through,  in  the 
night-time,  a  person  walking  along  the  road  fell  into  the  canal  and 
was  drowned,  just  as  the  boat  was  coming  up.  When  the  bridge 
was  open  the  highway  was  wholly  unfenced.  Two  lamps  had 
formerly  been  kept  burning,  of  which  one  had  been  removed  and 
the  other  was  out  of  repair  at  the  time.  The  jury  found  that 
the  deceased  was  drowned  by  reason  of  the  neglect  of  reasonable 
precautions  on  the  part  of  the  canal  company,  without  any  fault 
on  his  own  part.  Held  that  the  defendants,  having  a  beneficial 
interest  in  the  tolls,  were  liable  to  an  action,  the  same  as  any 
owner  of  private  property  would  be  for  a  nuisance  arising  there- 
from. That  the  bridge  being  in  the  possession  of  defendants,  the 
action  was  properly  brought  against  them  and  not  against  the 
boatman.  That  the  passing  the  subsequent  acts,  recognizing 
the  existence  of  the  bridge,  was  not  a  legislative  declaration  of  its 
sufficiency.  It  was  further  held,  that  even  if  the  bridge  had  been 
sufficient  at  the  time  of  its  erection,  it  was  the  duty  of  the  com- 
pany so  to  alter  and  improve  its  structure,  from  time  to  time,  as 
at  all  times  to  maintain  a  bridge  sufficient,  with  reference  to 
the  existing  state  of  circumstances,  and  that  tiie  jury  were  war- 
ranted in  considering  the  bridge,  in  the  state  in  which  it  was, 
insufficient. 

2.  But  it  has  been  held,  that  where  such  companies,  having 
the  power,  by  law,  to  cut  through  and  alter  highways,  either 
temporarily  or  permanently,  do  it  in  such  a  manner  as  to  leave 
them  unsafe  for  travellers,  who  in  consequence  sustain  injury 
without  fault  on  their  part,  that  the  towns  or  cities  in  which 
such  highways  or  public  streets  are  situated  are  primarily  liable3 
for  all  such  injuries. 

•  Willard  v.  Newbury,  22  Vt.  458 ;  Batty  v.  Duxbury,  24  Vt.  loo ;  Currier 
v.  Lowell,  Hi  Pick.  170;  Buffalo  v.  Ilolloway,  14  Barb.  101.  In  this  last  case 
an  opinion  is  intimated,  that  a  contractor  for  such  works  is  not  liable  to  make 
such  precautionary  erections  as  may  be  requisite  to  guard  the  public  against 
injury,  no  such  provision  being    found  in  his  contract.     But  is  not  that  a  duty 

36  [*538J 


562  LIABILITY    FOR    CONTRACTORS,    AGENTS,    ETC  PART  VI. 

3  And  it  is  also  true  that  such  towns  or  cities  may  claim  an  in- 
demnity again  si  the  railway  companies  who  are  first  in  fault,  and 
in  such  action  recover  not  only  the  damages,  but  the  costs  paid  by 
them,  and  winch  were  incurred  in  the  reasonable  and  necessary  de- 
fence of  actions  brought  against  them  on  account  of  the  defects  in 
such  company's  works.4  *  And  where  the  injury  did  not  accrue  for 
more  than  six  years,  it  was  held  that  the  railway  was  still  liable  to 
indemnify  the  town,  notwithstanding  the  bar  of  the  statute  of  limita- 
tions, reckoning  the  cause  of  action  as  accruing  at  the  date  of  the 
neglect ;  and  that  it  did  not  exonerate  the  company  guilty  of  the 

which  every  one  owes  the  public  in  all  works  which  he  undertakes?  In  Barber 
v.  Essex,  27  Yt.  62,  the  following  points  are  decided:  An  old  highway,  which  a 
railway  proposes  to  use  for  its  track,  is  not  considered  as  discontinued  till  the 
company  have  provided  a  substitute,  or  unless  effected  by  some  other  definite 
legal  act,  or  by  an  abandonment  by  legal  authority,  or  nonuser.  Towns  are 
responsible  to  the  public  for  the  safe  condition  of  their  highways,  and  cannot 
excuse  themselves  from  the  performance  of  the  duty  by  showing  that  a  railway 
company,  proceeding  under  their  charter,  had  caused  the  defects  complained  of. 
The  towns  are  bound  to  watchfulness  upon  this  subject,  and  theirs  being  a 
primary  responsibility,  they  cannot  shift  it  upon  the  railway,  whose  responsibility 
is  secondary  in  regard  to  travellers  and  the  public  generally.  The  towns  have 
their  remedy  over  against  the  company.  See,  also,  to  same  effect,  Phillips  v. 
Veazie,  4U  Maine,  96.  The  obligation  upon  the  towns  to  make  highways  safe 
and  convenient  for  travellers  continues  when  they  are  crossed  by  railways  at 
grade,  except  so  far  as  the  necessary  use  of  the  crossing  by  the  railway  may 
prevent  it,  and  subject  to  such  specific  directions  as  may  be  given  by  the  county 
commissioners.  Davis  v.  Leominster,  1  Allen,  182.  But  towns  are  not  liable 
for  obstructions  caused  by  telegraph  poles  which  they  have  no  right  to  remove. 
Young  v.  Yarmouth,  9  Gray,  386.  The  railway  is  also  responsible  for  all 
unlawful  obstructions  of  the  highway.  Parker  v.  Boston  &  Maine  Railw.  Co., 
3  Cush.  107.  But  where  the  duty  of  maintaining  a  bridge  is  imposed  exclu- 
sively upon  the  railway,  the  town  is  not  responsible  for  any  defects  in  the  same. 
Sawyer  v.  Northfield,  7  Cush.  490.  See,  also,  Jones  v.  Waltham,  4  Cush.  299  ; 
Vina!  v.  Dorchester,  7  Gray,  421. 

4  Lowell  v.  Boston  &  Lowell  Railw.,  23  Pick.  24;  Newbury  v.  Conn.  &  Pas. 
Rivers  Railw.,  25  Yt.  377.  The  recovery  in  these  cases  is  allowed  upon  the 
ground,  that  the  wrong  is  altogether  upon  the  part  of  the  company,  and  the  town, 
standing  primarily  liable  to  the  public  for  the  sufficiency  of  the  highways,  and 
being  virtual  guarantors  against  the  negligence  of  the  railway  company,  may 
therefore  recover  of  them  an  indemnity,  not  only  for  the  damages  they  are  com- 
pelled to  pay,  but  also  the  costs  and  expenses  incurred  by  them  in  defending 
bona  fide  against  suits  brought  against  them  for  the  default  of  the  company. 
Duxbury  v.  Yt.  C.  Railw.,  26  Vt.  751,  752,  753;  Harden  v.  Cabot,  17  Mass. 

Bamden  v.  New  llav.  &  Northamp.  Co.,  27  Conn.  158. 
[*539] 


§  132.      DEFECTS   IN   HIGHWAYS    CAUSED    BY   COMPANY'S   WORKS.      563 

neglect,  that  they  had  leased  their  road  to  another  company  who 
were  operating  it  at  the  time  the  injury  occurred.5 

4.  And  where  the  statute  provides  that  railways  "  shall  main- 
tain and  keep  in  repair  all  bridges,  with  their  abutments,  which 
they  shall  construct  for  the  purpose  of  enabling  their  road  to  pass 
over  or  under  any  road,  canal,  highway,  or  other  way,"  and  the 
company  omitted  to  perform  the  duty  in  the  manner  required 
for  the  public  safety,  it  was  held  that  the  town,  within  which  the 
road  lay,  were  liable  to  indictment  for  not  keeping  it  in  safe 
repair,  and  that  they  may  compel  the  railway  company  to  make 
all  such  repairs  as  may  be  necessary',  by  writ  of  mandamus  ;  or  if 
they  have  been  obliged  to  make  expenditures  therein,  may  reim- 
burse themselves  by  an  action  on  the  case  against  the  company.6 

5.  And  where  a  railway  company  were  authorized  by  the  leg- 
islature to  construct  and  operate  their  road  through  the  streets  of 
a  city,  and  the  city  government  have  assented  to  the  location  and 
construction  upon  a  designated  route,  on  certain  conditions,  it  was 
held  that  the  municipal  authority  had  no  power  by  resolution  to 
annul  or  impair  the  grant  to  the  company  on  account  of  its  failure 
to  complete  the  road  within  the  time  limited  in  the  conditions  an- 
nexed to  their  assent ; 7  and  that  such  condition  was  not  to  be 
regarded  as  precedent  to  the  vesting  of  the  estate  or  franchise,  but 
only  a  condition  subsequent  upon  the  non-performance  of  which 
the  grantor  might  elect  to  defeat  it,  but  that  nothing  short  of  a 
judicial  determination  would  operate  to  divest  the  interest  of  the 
company.7 

*  6.  Where  a  railway  has  been  laid  upon  a  public  street,  it  does 
not  thereby  become  public  property,  in  such  a  sense  as  to  entitle 
the  public  at  large  or  other  railway  companies  to  use  the  track  for 

5  Hamden  v.  New  H.  &  North.  Co.  &  N.  Y.  &  N.  H.  Railw.,  27  Conn.  158. 
But  where  the  company  have  the  right  to  lay  their  rails  in  the  street,  they  are 
not  responsible  for  any  injury  resulting  therefrom  to  others,  unless  they  have 
been  in  fault  either  in  laying  them  down  or  in  keeping  them  safe.  Mazetti  v. 
New  York  &  Harlem  Railw.,  3  E.  D.  Smith,  98;  post,  §  225,  pi.  7. 

6  State  v.  Gorham,  37  Maine,  451. 

7  Brooklyn  Central  Railw.  v.  Brooklyn  City  Railw.,  32  Barb.  358.  But  a 
railway  company  has  no  such  interest  in  the  street  when  its  line  is  laid  as  to  enti- 
tle it  to  maintain  an  injunction  against  another  company,  for  laying  its  track  in 
the  same  street,  but  not  so  as  to  interfere  with  its  use  by  the  former  company. 
N.  Y.  &  H.  Railw.  v.  Forty-second  Street  &  G.  F.  S.  Railw.,  50  Barb.  285, 
309. 

[*540] 


564  LIABILITY   FOR   CONTRACTORS,    AGENTS,    ETC.  PART  VI. 

the  passage  of  carriages  constructed  for  such  use.7  Nor  will  the 
permission  of  the  municipal  authorities  for  that  purpose  give  any 
such  right.7 

7.  Where  a  railway  company  is  required  to  construct  its  road 
so  as  not  to  obstruct  the  safe  and  convenient  use  of  the  highway, 
this  is  a  continuing  obligation  requiring  the  company  to  so  main- 
tain their  road  as  to  leave  the  highway  safe  and  convenient  for 
public  use ;  but  this  will  not  exonerate  the  towns  from  their 
primary  responsibility.8 

8.  Cities  or  towns  are  not  liable  for  damages  resulting  from  the 
proper  exercise  of  authority  in  permitting  railway  tracks  to  be 
laid  in  the  streets,  or  in  raising  the  grade  of  streets,  unless  they 
exceed  their  lawful  authority  in  this  respect.9  And  it  is  here  said 
to  he  a  legitimate  use  of  a  street  to  allow  a  railway  track  to  he  laid 
in  it. 

9.  Where  a  canal  company  had  constructed  a  bridge  as  part  of 
the  farm  accommodations  of  an  adjoining  land-owner  which  the 
company  were  bound  to  maintain,  and  a  railway  company  by  sub- 
sequent legislative  grant  had  laid  its  track  along  the  line  of  the 
canal,  and  in  consequence  had  been  compelled  to  alter  the  con- 
struction of  the  bridge  so  as  to  render  it  more  expensive  to  main- 
tain the  same,  it  was  held  the  canal  company  were  not  thereby 
exonerated  from  maintaining  the  bridge,  but  were  liable  to  the 
land-owner  the  same  as  before  the  alteration  by  the  railway  com- 
pany, notwithstanding  any  liability  which  might  rest  upon  the  rail- 
way company.10 

10.  Where  a  railway  crossed  on  a  level  a  considerably  frequented 
footpath,  and  there  was  no  servant  of  the  company  at  the  crossing 

8  Wellcome  v.  Leeds,  51  Me.  313.  The  case  of  Kearney  v.  London  B.  & 
8.  (  .  Etailw.,  L.  R.  5  Q.  B.  411,  presented  a  very  unusual  question.  The  plain- 
tiff while  passing  along  the  highway  under  a  bridge  of  the  defendants,  was 
injured  by  the  falling  of  a  brick  from  the  works  supporting  the  bridge,  which  it 
was  supposed  might  have  become  loose  from  the  jar  of  the  passing  trains.  The 
majority  of  the  court  held  the  defendants  responsible,  and  the  judgment  was 
affirmed  in  the  Exchequer  Chamber,  6  id.  759.  Here  Kelly,  C.  B.,  said  that  the 
fact  of  the  brick  falling  was  satisfactory  evidence  that  it  had  been  loosened  before, 
"and  it  was  the  duty  of  the  defendants  from  time  to  time  to  inspect  the  bridge 
and  ascertain  that  the  brick-work  was  in  good  order  and  all  the  bricks  well 
secured." 

9  Murphy  v.  City  of  Chicago,  29  111.  279. 

10  Ammermon  v.  Wyoming  Land  Co.,  40  Penn.  St.  256. 
[*540] 


§  132.      DEFECTS   IN   HIGHWAYS   CAUSED    BY   COMPANY'S   WORKS.      565 

to  warn  persons  of  the  approach  of  the  trains,  the  view  being 
somewhat  obstructed  by  the  pier  of  the  bridge,  but  a  person 
before  reaching  the  track  could  see  nearly  three  hundred  yards 
either  way  along  the  line,  and  the  plaintiff's  wife,  while  crossing 
the  line  at  the  spot  was  run  over  and  killed,  it  was  held  that  the 
fact  of  the  company  hot  keeping  a  servant  at  the  crossing  to  warn 
*  persons  of  the  approach  of  trains,  was  not  evidence  of  negligence 
to  go  to  the  jury.11 

11.  And  where  it  was  made,  by  statute,  the  duty  of  a  railway 
company  to  maintain  gates  at  all  level  crossings  of  highways,  and 
to  have  persons  to  open  and  shut  them  when  any  one  wished  to 
pass,  but  at  all  other  times  they  were  to  be  kept  shut,  and  a  per- 
son coming  along  the  highway  when  no  servant  of  the  company  was 
present,  as  he  should  have  been,  to  open  and  shut  the  gates,  the 
plaintiff  having  waited  a  reasonable  time  opened  the  gates  himself 
in  order  that  he  might  be  able  to  proceed  on  his  journey,  and  in 
doing  so  was  injured  by  the  closing  of  the  gates,  which  were  so 
constructed  as  to  fall  back  into  their  places  with  their  own  weight, 
it  was  held  the  action  would  not  lie,  one  judge  dissenting.12  This 
case  was  decided  mainly  upon  the  ground  that  by  the  act  of  parlia- 
ment requiring  the  gates  to  be  kept  closed,  except  when  opened 
by  the  servants  of  the  company,  it  amounted  to  a  virtual  prohibi- 
tion of  any  one  crossing  the  railway  at  any  other  time,  and  if  the 
plaintiff  found  no  servant  of  the  company  to  open  the  gate,  it  was 
his  duty  to  wait  until  he  could  find  one,  and  seek  his  remedy  for 
the  delay  against  the  company  ;  and  being  a  wrong-doer  in  open- 
ing the  gate,  he  could  not  recover  of  the  company  for  any  injury 
he  thereby  sustained. 

11  Stapley  v.  London,  Brighton,  &c,  Railw.  Co.,  Law  Rep.  1  Exch.  21 ;  s.  c. 
11  Jur.  (N.  S.)  954. 

12  Wyatt  v.  Great  Western  Railw.  Co.,  6  B.  .&  S  709 ;  s.  c.  11  Jur.  (N.  S.) 
825. 

[*541] 


566 


LIABILITY    FOR   CONTRACTORS,    AGENTS,   ETC. 


PART  VI. 


SECTION     V. 


Liability  for  Injuries  in  the  Nature  of  Torts. 


oay   crossings   upon   a  level  always 
dangerous. 

■  11,1/  1,1,1  excused  by  use  of  the  signals 
r,  quired  by  statute. 

■  not  recover  if  his  oum  act  con- 
tribllti  it  to  injury. 

4.  lint  company  liable  still  if  they  might  lain 

avoidt  d  tin-  injury. 

5.  If  company  omit  proper  signals,  not  liable, 

■  that  produce  the  injury. 
t'i.   Not  H"t,!i  for  injury  to  cattle  trespassing, 

s  guilty  of  wilful  wrong. 
7.   Gem  ml  definitions  of  company's  duty. 
s.  Action  accrues  from  the  accruing  of  the 

injury. 
'.».    Where   injury  is  wanton,  jury  may  give 
i  r<  mplary  damages. 


10.  One  who  follows  direction  of  gate-keeper 

excused. 

11.  Company   responsible  for    injury  at    a 

crossing  opened  by  themselves  for  public 
use. 

12.  The  responsibility  of  railway  companies 

for  damages  to  persons  crossing,  mainly 
matter  of  fact,  and  each  case  depends 
on  its  peculiar  circumstances. 

13.  Points  decided  in  late  case  ;  speed,  negli- 

gence, frc. 

14.  The   company   may    establish   and    use 

proper  and  necessary  signals  in  the 
conduct  of  its  business. 

15.  Duty  of  company  in  driving  trains  in  a 

city.     Presumptions  as  to  negligence. 

16.  Company  responsible  for  damage  caused 

by  needless  blowing  of  steam  ivhistles. 


§  133.  1.  We  have  discussed  the  subject  of  this  chapter,  in 
*  general,  in  other  sections.1  We  shall  here  refer  to  some  cases, 
where  railway  companies  have  been  held  liable  for  injuries  to  per- 
sons, in  no  way  connected  with  them  by  contract  or  duty.  The 
subject  of  railway  crossings,2  on  a  level  with  the  highway,  has  been 
before  alluded  to,  as  one  demanding  the  grave  consideration  of  the 
legislatures  of  the  several  states.  It  causes  always  a  most  painful 
sense  of  peril,  especially  where  there  is  any  considerable  travel 
upon  the  highway,  and  is  followed  by  many  painful  scenes  of 
mutilation  and  death,  under  circumstances  more  distressing,  if 
possible,  than  even  the  accidents,  so  destructive  sometimes  to 
railway  passengers. 

2.    In  a  case3  where    the    plaintiff  was    injured    at  a  railway 

1  Ante,  §  130,  post,  193. 

■  Ante,  §  108.  • 

3  Bradley  v.  Boston  &  Maine  Railw.,  2  Cush.  539.  Some  distinction  is  made 
by  the  judge,  in  trying  this  case,  between  those  cases  of  negligence  which  occur 
in  long-established  modes  of  business,  and  the  case  of  the  management  of  rail- 
way trains  ;  that  in  the  former  case  usage,  if  uniform  and  acquiesced  in  by  the 
[*542] 


§  133.  LIABILITY    FOR    INJURY    IN    THE    NATURE    OF    TORTS.  567 

crossing,  by  collision  with  an  engine,  it  was  held  that  where  the 
statute  required,  at  such  points,  certain  specified  signals,  the 
compliance  with  the  requirements  of  the  statute  will  not  excuse 
the  company  from  the  use  of  care  and  prudence  in  other  re- 
spects. That  it  is  not  necessarily  enough  to  excuse  the  company, 
that  they  pursued  the  usual  course  adopted  by  engineers  in  such 
cases.  The  question  of  negligence  is  one  of  fact,  in  such  cases, 
to  be  submitted  to  the  jury,  under  all  the  circumstances  of  the 
case,  and  to  be  determined  by  them,  upon  their  view  of  what 
prudence  and  skill  required. 

3.  But  when  the  statute  requires  certain  precautions  against 
accidents,  and  its  requirements  are  disregarded,  the  party  suffer- 
ing damage  is  not  entitled  to  recover,  if  he  was  himself  guilty  of 
negligence  which   contributed    to  the  damage.4      And  where  the 

public,  may  amount  to  a  rule  of  law ;  but  not  in  a  business  so  recent  as  the 
management  of  railway  trains.  This  view  seems  to  be  sanctioned  by  the  Su- 
preme Court  in  revising  the  case.  See,  also,  Briggs  v.  Taylor,  28  Vt.  185; 
s.  c.  2  Rertf.  Am.  Railw.  Cases,  558;  Lidfield  v.  Old  Colony  Railw.,  10  Cush. 
562.  Rut  railways  are  not  bound  to  make  the  signals  required  at  road-crossings 
for  the  benefit  of  persons  walking  upon  their  track  two  hundred  feet  from  the 
crossing.     Harty  v.  Central  Railw.,  42  N.  Y.  468. 

4  Parker  v.  Adams,  12  Met.  415  ;  Eckert  v.  Long  Island  Railw.,  57  Barb.  555. 
But  in  this  last  case  it  was  held,  that  one  who  rushes  before  a  train  to  save  the 
life  of  a  child  is  not  precluded  from  recovering  for  the  damage  suffered  by  the 
negligence  of  the  company  by  reason  of  his  own  conduct;  post,  §  193;  Macon 
&  W.  Railw.  v.  Davis,  18  Georgia,  679,  where  the  question  of  negligence  in  the 
conductors  of  a  railway  train  in  passing  a  road-crossing,  is  held  to  be  one  of  fact 
depending  upon  the  circumstances  of  each  particular  case.  Dascomb  v.  Buffalo  & 
State  Line  Railw.,  27  Barb.  221.  But  the  omission  of  any  statute  duty  by  railway 
companies  at  the  time  and  place  where  an  accident  occurs  is  prima  facie  evidence 
of  liability.  Aug.  &  Sav.  Railw.  v.  McElmurry,  24  Ga.  75.  In  Johnson  v. 
Hudson  River  Railw.,  6  Duer,  633,  where  the  plaintiff's  husband  was  killed  in 
the  streets  of  the  city  of  New  York  by  one  of  defendants'  freight  cars  in  the 
night-time,  it  being  very  dark,  and  the  company  using  neither  lights  nor  bells 
to  guard  against  accident ;  it  was  held,  that  although  the  law  required  of 
defendants  only  ordinary  care  towards  the  deceased,  it  must  be  measured  by 
the  degree  of  peril  against  which  such  care  is  to  be  exercised,  which,  under 
the  circumstances,  was  so  extreme  as -to  justify  the  court  in  telling  the  jury 
that  defendants  were  required  to  use  every  precaution  in  their  power  to  insure 
the  safety  of  persons  passing ;  and  that  if  lights  or  bells  would  have  contrib- 
uted to  that  end,  they  were  culpable  for  not  using  them;  and  that  in  this  form 
the  question  of  negligence  was  properly  submitted  to  the  jury  as  one  of  fact. 
It  was  also  held  that  the  deceased  was  only  bound  to  the  exercise  of  ordinary 
care,  and  that  his  being  found  upon  the  track  was  not  sufficient  ground  to  pre- 

[*542] 


5G8  LIABILITY   FOR   CONTRACTORS,    AGENTS,   ETC.  PART  VI. 

•plaintiff'fl  farm  Mas  intersected  by  the  line  of  a  railway,  and  lie, 
with  a  wagon  and  one  horse,  having  his  son  and  a  servant  with 

dude  the  recovery.  I"  the  case  of  Wakefield  v.  Conn.  &  Pass.  Rivers  Railw., 
87  Yt.  330,  it  was  held,  that  the  requirements  of  the  statute  in  regard  to  blowing 
the  whistle  and  ringing  the  bell,  a  prescribed  distance  before  crossing  the  highway, 
was  a  duty  of  the  company  not  only  in  reference  to  travellers  about  crossing  the 
track  of  the  railway,  but  with  reference  to  all  persons,  who  being  lawfully  at  or 
in  the  vicinity  of  the  crossing,  are  exposed  to  accident  or  injury'by  reason  of 
the  passing  train,  short  of  actual  contact  with  it.  And  it  is  further  said  here, 
thai  although  there  might  be  cases  in  which  the  company  would  be  excused 
from  a  strict  compliance  with  the  statute,  and  might  be  justified  in  omitting  the 
signals,  in  all  cases  of  such  omission,  where  damage  ensued  in  consequence,  the 
company  must  show  that  they  were  justified  in  the  omission.  This  seems  rather 
a  loose  view  to  be  taken  of  a  peremptory  statutory  requirement,  that  the  party 
is  to  exercise  a  discretion  when  to  comply.  As  a  general  rule,  the  party  must 
omit  any  such  requirement  at  the  peril  of  all  legal  consequences.  But  the  court 
seem  to  suppose  that  the  statute  in  imposing  a  penalty  for  the  "  unreasonable" 
omission  of  such  signals  must  have  contemplated  cases  of  reasonable  omission. 
That  may  be  so ;  but  it  would  be  more  satisfactory  to  the  common  mind  to  find 
such  an  important  qualification  of  the  leading  provisions  of  the  statute,  more 
explicitly  declared,  than  by  so  indirect  an  inference.  We  do  not  suppose  any 
such  construction  could  safely  be  applied  to  these  statutes  generally.  It  would 
be  sure  to  result  in  a  virtual  repeal  or  disregard  of  the  statute.  It  would 
be  far  more  salutary  to  have  the  engineer  understand  that  he  had  no  discre- 
tion in  the  matter,  that  he  must  give  the  signals  regardless  of  consequences. 
In  an  important  case,  Shaw  v.  Boston  &  Worcester  Railw.,  8  Gray,  45,  the 
subject  of  injuries  at  railway  and  highway  intersections  is  a  good  deal  discussed. 
Post,  %  133,  pi.  '.)  &  n.  It  is  here  decided  that  the  record  of  the  county  commis- 
sioners stating  that  in  their  opinion  no  flagman  at  the  crossing  was  necessary,  is 
not  competent  to  show  due  care  on  the  part  of  the  company  in  omitting  that 
precaution.  The  court  said  it  was  the  duty  of  the  judge  in  charging  the  jury  in 
regard  to  the  precautions  required  to  be  taken  by  a  railway  company  at  a  high- 
way crossing,  to  distinguish  between  such  circumstances  as  could  have  been 
-  nablv  anticipated,  and  such  as  would  have  required  extraordinary  precau- 
tions, but  were  of  so  extraordinary  a  character  as  not  to  have  been  anticipated. 
It  was  also  held  a  fatal  variance  that  the  proof  showed  the  injury  to  have  occurred 
some  rods  out  of  the  highway  where  the  plaintiff's  horse  drew  the  carriage  by 
reason  of  being  frightened  by  defendants'  locomotive  engine,  the  declaration 
charging  it  to  have  occurred  while  travelling  in  the  highway,  and  the  declaration 
cannot  be  amended  after  verdict  so  as  to  cure  the  variance.  Also  that  the 
degree  of  care  required  of  the  company  and  travellers,  at  a  railway  and  highway 
crossing,  is  the  same,  being  that  which  men  of  ordinary  capacity  would  exercise 
under  like  circumstances.  The  fact  that  a  collision  occurred  at  a  railway  cross- 
ing, and  that  the  plaintiff  was  in  no  fault,  is  not  proof  that  the  defendant  was  in 
fault.  As  to  crossing  private  way,  see  Cliff  v.  Midland  Railw.,  L.  R.  5  Q.  B. 
258.     The  opinion  of  Mettor,  J.,  affords  a  valuable  commentary  in  regard  to 

[*543] 


§  133.  LIABILITY   FOR   INJURY   IN   THE   NATURE   OF   TORTS.  569 

P  him,  drove  upon  a  trot  directly  over  the  track  at  a  public  cross- 
ing, without  taking  the  slightest  precaution  to  ascertain  whether 
a  locomotive  was  coming,  it  was  held  that  he  was  guilty  of  great 
carelessness,  and  that  he  could  not  recover  for  any  damage  he  had 
sustained,  and  that  it  was  immaterial  whether  the  train  was  on 
time  or  not.  It  was  also  held,  that  the  question  of  negligence, 
in  a  case  of  this  character  where  the  testimony  was  all  one  way, 
was  one  of  law  to  be  decided  by  the  court,  and  could  not  be  left 
to  the  jury.5     The  company  are  bound  to  maintain  a  sign-board 

what  may  be  esteemed  negligence  on  the  part  of  the  railway,  which  will  be  found 
in  1  Redf.  Am.  Railway  Cases,  669. 

5  Dascomb  v.  Buffalo  &  State  Line  Railw.,  27  Barb.  221;  Mackey  v.  New 
York  Central  Railw.,  27  Barb.  528.  It  would  seem  to  be  the  duty  of  one  about 
to  pass  a  railway  to  exercise  watchfulness  to  know  that  a  train  is  not  approach- 
ing, lb.  Hanover  Railw.  v.  Coyle,  55  Penn.  St.  396;  Wilcox  v.  Rome  & 
Watertown  Railw.,  39  N.  Y.  358;  Penn.  Canal  Co.  v.  Bentley,  66  Penn.  St.  30, 
seems  to  attempt  some  qualification  of  the  rule  laid  down  in  the  text.  The  late 
cases  all  seem  to  require  that  where  a  traveller  is  crossing  a  railway  at  grade,  and 
there  are  no  gates  or  flagmen,  it  is  his  duty  to  stop  and  listen  and  keep  a  sharp 
lookout  for  trains.  lb.  It  is  the  duty  both  of  the  traveller  and  of  the  railway  to 
keep  a  sharp  lookout,  each  for  the  peril  to  be  avoided  at  a  road-crossing.  Pittsb. 
&  H.  W.  Railw.  v.  Dunn,  56  Penn.  St.  280;  Bait.  &  Ohio  Railw.  v.  Breinig, 
25  Md.  378;  Webb  v.  P.  &  K.  Railw.,  57  Me.  117;  Havens  v.  E.  Railw.,  53 
Barb.  328  ;  Kennayde  v.  Pacific  Railw.,  45  Mo.  255  ;  Ch.  &  Alt.  Railw.  v.  Gretz- 
ner,  46  111.  74.  And  the  traveller  is  not  exonerated  from  the  duty  of  looking  up 
and  down  the  track  of  a  railway  to  see  whether  a  train  is  approaching,  before 
going  upon  the  same,  by  reason  of  the  company  omitting  to  ring  the  bell  or  blow 
the  whistle,  and  if  his  omission  to  do  so  contributed  to  his  injury  he  cannot 
recover.  Havens  v.  Erie  Railw.,  41  N.  Y.  296  ;  Grippen  v.  N.  Y.  Cent.  Railw., 
40  id.  34;  Harty  r.  Same,  42  id.  468;  Nicholson  v.  Erie  Railw.,  41  id.  525. 
The  plaintiff  cannot  recover  of  a  railway  company  for  damages  sustained  at  a 
crossing  at  grade,  if  neither  himself,  or  his  driver,  exercised  sufficient  watchful- 
ness to  see  the  signboard,  which  might  have  been  done  many  rods  before  reach- 
ing the  crossing,  and  neither  of  them  listened  to  know  whether  a  train  was 
approaching  before  entering  upon  the  track.  Allyn  v.  Boston  &  Albany  Railw., 
105  Mass.  77.  The  court  here  decide,  as  matter  of  law,  that  the  plaintiff  cannot 
recover,  because  "  there  was  no  evidence  from  which  the  jury  could  reasonably 
and  properly  conclude  that  the  plaintiff  was  in  the  exercise  of  due  care."  The 
same  might  as  well  be  expressed  by  saying,  that  all  the  evidence  tended  to  show 
that  the  plaintiff  was  not  in  the  exercise  of  due  care.  But  the  Massachusetts 
law  seems  entirely  settled,  that  the  plaintiff  must  show  affirmatively  that  he  was 
in  the  exercise  of  due  care  when  the  damage  accrued  or  he  cannot  recover.  lb. ; 
Wan  en  v.  Fitchburg  Railw.,  8  Allen,  227;  Hickey  v.  Boston  &  Lowell  Railw., 
14  Allen,  429  ;  Murphy  v.  Deane,  101  Mass.  455  ;  Southworth  v.  Old  Colony 
Railw.,  105  Mass.  342.     But  it  seems  that  where  the  crossing  of  the  railway  and 

[*544] 


570  LIABILITY    FOR   CONTRACTORS,    AGENTS,   ETC.  PART  VI. 

and  other  precautions,  required  by  statute  at  railway  crossings, 
at  the  place  where  an  open  travelled  street  in  a  city  intersects 
the  railway,  although  the  street  has  not  been  so  laid  out  and 
established  by  the  municipal  authorities  as  to  make  the  city  re- 
sponsible for  damages  occasioned  by  defects  therein,  such  passage 
being  a  "travelled  route"  within  the  meaning  of  the  statute.6 
But  it  has  been  held,  that  the  company  is  not  liable  for  not  con- 
structing an  under  pass  for  the  accommodation  of  the  public 
travel,  on  a  way  which  was  not  laid  out  agreeably  to  the  statute, 
and  had  not  been  in  use  by  the  public  twenty  years.7  It  is  such 
negligence  for  a  deaf  man  to  drive  an  unmanageable  horse  across 
a  railway  track  when  a  train  is  approaching,  that  he  cannot 
recover  for  any  damage  sustained.  He  should  wait  and  avoid 
exposure.8 

highway  is  arranged  in  such  manner,  that  travellers  cannot  see  or  hear  the  ap- 
proaching trains  by  the  use  of  care  and  watchfulness,  it  is  the  duty  of  the  com- 
pany to  use  extraordinary  means  for  -warning  travellers.  Richardson  v.  N.  Y. 
Cent.  Railw.,  45  N.  Y.  846.  This  general  subject  is  somewhat  discussed  by 
Mr.  Justice  Field,  in  Railway  Co.  v.  Whitton's  Adm.,  13  Wall.  270. 

"  Whittaker  v.  Boston  &  Maine  Railw.,  7  Gray,  98.     But  later  statutes  adopt 
a  different  phraseology. 

7  Northumberland  v.  At.  &  St.  Law  R.  Co.,  35  N.  H.  574. 

8  111.  Cent.  R.  Co.  v.  Buckner,  28  111.  299.  This  question,  both  as  to  the  care 
required  of  the  company  and  the^erson  crossing  a  railway,  is  considered  and 
discussed,  in  Ernst  v.  Hudson  River  Railw.,  35  N.  Y.  9,  arrd  the  following  prop- 
osition maintained.  The  omission  of  a  railway  company  to  give  the  signals  re- 
quired by  the  statute  on  the  approach  of  a  locomotive  within  eighty  rods  of  a 
highway  crossing,  is  a  breach  of  duty  to  the  passengers,  whose  safety  it  imperils, 
and  to  tlic  wayfarer,  whom  it  exposes  to  mutilation  and  death.  Such  a  crossing 
is  dangerous,  only  when  the  company'  makes  it  so  by  propelling  its  engines  across 
it  :  and  the  statute,  therefore,  for  the  protection  of  human  life,  exacts  public 
warning  of  the  approach  of  such  danger.  The  injunction  is  plain  and  absolute, 
and  tlie  company  who  violates  it  does  so  at  its  peril.  The  omission  of  the 
cnst i unary  signals  is  an  assurance  by  the  company  to  the  traveller,  that  no  engine 
is  approaching  from  either  side  within  eighty  rods  of  the  crossing;  and  he  may 
rely  on  such  assurance,  without  incurring  the  imputation  of  breach  of  duty  to  a 
wrong-doer.  When  the  passer-by  knows  of  the  immediate  proximity  of  an 
advancing  train,  whether  the  warning  be  by  signals  or  otherwise,  and,  having  a 
safe  and  seasonable  opportunity  to  stop,  he  voluntarily  takes  the  risk  of  crossing 
in  frOnl  of  it,  be  is  guilty  of  culpable  negligence,  and  forfeits  all  claims  to  redress. 
But  when  the  usual  warning  is  withheld,  the  wayfarer  has  a  right  to  assume  that 
the  crossing  is  safe,  and  that  the  company  is  not  violating  the  law,  and  endanger- 
ing human  life,  by  running  an  engine  without  signals.  The  citizen,  on  the  public 
highway,  is  bound  only  to  the  exercise  of  ordinary  care ;  and  when  he  is  injured 

[*544] 


§  133.  LIABILITY   FOR   INJURY   IN   THE   NATURE   OF  TORTS.  571 

*  4.  If  the  plaintiff's  negligence  did  not  contribute  to  his  injury, 
it  will  not  preclude  his  recovering  for  the  consequences  of  defend- 
ant's *  wrong.9     If  the  wrong  on  the  part  of  the  defendant  is  so 

by  the  negligence  of  a  railroad  company,  it  is  no  answer  to  his  claim  for  redress, 
that,  notwithstanding  the  omission  of  the  signals,  he  might,  by  greater  vigilance, 
have  discovered  the  approach  of  the  train,  if  he  had  foreseen  a  violation  of  the 
statute,  instead  of  relying  upon  its  observance.  The  traveller  is  not  bound  to 
stop  on  the  highway,  or  to  look  up  and  down  an  intersecting  railway  track  before 
crossing,  when  there  are  no  signals  of  an  approaching  engine.  Ordinarily,  in 
cases  of  this  description,  the  question  whether  the  party  injured  was  free  from 
culpable  negligence,  is  one  of  fact  to  be  determined  by  the  jury,  under  appro- 
priate instructions,  and  subject  to  the  revisory  power  of  the  courts.  Where  the 
proof  is  undisputed  and  decisive,  that  the  plaintiff  was  guilty  of  misconduct,  and 
that  this  contributed  to  the  injury,  a  nonsuit  is  matter  of  right;  but  it  is  equally 
matter  of  right  to  have  the  issue  of  negligence  submitted  to  the  jury,  when  it 
depends  on  conflicting  evidence,  or  on  inferences  to  be  deduced  from  a  variety 
of  circumstances,  in  regard  to  which  there  is  room  for  fair  difference  of  opinion 
between  intelligent  and  upright  men.  The  same  view  is  maintained  and  further 
illustrated  in  the  subsequent  case  of  Renwick  v.  New  York  Central  Railw.,  36 
N.  Y.  132.  It  seems  to  us  these  cases  develop  a  very  important  and  most  un- 
questionable rule  of  responsibility  on  the  part  of  railway  companies,  in  regard 
to  injuries  to  persons  at  highway  crossings;  i.e.,  that  the  companies,  when 
omitting  the  customary  and  required  signals  before  arriving  at  such  crossings, 
should  expect  a  proportionally  less  degree  of  watchfulness  on  the  part  of  travel- 
lers. That  is  certainly  natural,  almost  inevitable.  In  such  a  case  the  company 
ought  not  to  complain,  if  held  responsible  for  all  consequences  not  the  result  of 
absolute  foolhardiness.  In  State  of  Maryland  v.  Baltimore  &  Ohio  Railw.,  5  Am. 
Law  Reg.  (N.  S.)  397,  s.  C  24  Md.  84,  it  was  held,  that  the  plaintiff  cannot 
recover  for  an  injury  resulting  from  the  negligence  of  the  defendant,  provided 
he  might,  himself,  by  the  exercise  of  proper  prudence,  care,  and  skill,  have 
escaped  from  its  consequences,  or  where  his  own  want  of  such  prudence,  care, 
and  skill  directly  contributed  to  produce  the  damage  complained  of.  Railways 
owe  a  higher  degree  of  watchfulness  to  their  passengers  than  to  mere  strangers. 
In  the  former  case  the  utmost  care  and  skill  is  required,  in  order  to  avoid  in- 
juries; but  in  the  latter  case,  only  such  as  skilful,  prudent,  and  discreet  persons, 
having  the  management  of  such  business  in  such  a  neighborhood,  would  naturally 
be  expected  to  put  forth.  But  to  entitle  one  to  recover  of  a  railway  company 
for  an  injury  at  a  road-crossing  it  must  appear  that  he  was  rightfully  upon  the 
highway.     P.  F.  W.  &  Chicago  Railw.  v.  Evans,  53  Penn.  St.  250. 

9  Kennard  v.  Burton,  25  Maine,  39.  In  the  newspaper  report  of  a  recent 
trial  in  the  Supreme  Court  of  Pennsylvania,  the  court  are  reported  to  have 
charged  the  jury,  as  matter  of  law,  that  "a  person  about  to  cross  a  railway  track 
[with  a  team]  is  in  duty  bound  to  stop  and  look  in  both  directions,  and  listen  be- 
fore crossing."  It  has  recently  been  decided  by  the  full  bench  Supreme  Court 
in  Massachusetts,  ante,  n.  4,  that  it  is  not  competent  for  the  judge  to  lay  down 
any  definite  rule,  as  to  the  duty  of  the  company,  in  regard  to  proper  precautions 
in  crossing  highways  ;  that  the  circumstances  attending  such  crossings  are  so  in- 

[*545,  540] 


572  LIABILITY    FOR   CONTRACTORS,   AGENTS,    ETC.        *   PART  VI. 

wanton  and  moss  as  to  imply  a  willingness  to  inflict  the  injury, 
■  plaintiff  may  recover,  notwithstanding  his  own  ordinary  neg- 
lect.1" Ami  this  is  always  to  lie  attributed  to  defendant,  if  he 
mighl  have  avoided  injuring  plaintiff,  notwithstanding  his  own  negli- 
gence.  So,  too,  if  the  neglect  on  the  part  of  the  plaintiff  is  not  the 
proximate  cause  of  the  injury,  it  will  not  preclude  a  recovery.11 

finitely  diversified  that  it  must  be  left  to  the  jury  to  determine  what  is  proper 
cm'  and  diligence  in  each  particular  case.  This  we  apprehend  is  the  true  rule 
upon  that  subject,  both  as  to  the  company  and  travellers  upon  the  highway,  and 
that  it  will  finally  prevail,  notwithstanding  occasional  attempts  to  simplify  the 
matter  by  definitions.  The  Pennsylvania  case  referred  to  is  that  of  O'Brien  v. 
Philadelphia,  Wilmington,  &  Baltimore  Railw.,  10  Am.  Railw.  T.  No.  10,  13. 
The  following  extracts  from  the  charge  to  the  jury  may  serve  to  explain  the 
views  of  the  court.  "  But  if  the  jury  find  that  the  company  were  not  faultless, 
that  they  did  or  omitted  any  thing  that  would  constitute  negligence  as  I  have 
defined  it,  the  next  inquiry  will  relate  to  the  conduct  of  the  plaintiff.  He  was  a 
carter,  ami  the  same  general  principles  apply  to  him  as  to  the  defendants.  He 
md  to  pursue  his  business  with  all  that  regard  to  the  safety  of  himself  and 
others  which  prudent  men  commonly  employ  in  like  occupations.  Did  he  demean 
himself  in  that  manner?  In  answer  to  the  Gth  and  7th  points  on  the  part  of  the 
defendants,  I  instruct  the  jury  that  a  carter,  or  any  man  having  charge  of  a  team, 
but  who  is  about  to  cross  a  railroad  at  grade  on  which  locomotives  run,  is  bound 
to  stop  ami  listen,  and  look  in  both  directions,  before  he  permits  his  team  to  set 
foot  within  the  rails,  and  omission  to  do  so  is  negligence  on  his  part.  This  rule 
of  law  is  demanded  by  a  due  regard  to  the  safety  of  life  and  property,  both  his 
own  and  that  which  is  passing  on  the  railroad.  From  the  diagram  in  evidence  it 
i-  perfectly  apparent  that  the  plaintiff  could  have  seen  the  approaching  train  if 
he  had  looked.  If  he  saw  it,  it  was  extreme  rashness  in  him  to  allow  his  lead 
horse  to  advance  so  far,  and  if  he  did  not  see  it,  it  must  have  been  because  he 
did  not  look.  I  state  the  general  rule,  but  whether  it  is  applicable  to  the  plain- 
tiff in  the  circumstances  which  surrounded  him  is  for  the  jury.  A  few  yards  on 
his  right,  some  witnesses  think  seventy,  there  was  a  gravel  train,  with  a  locomo- 
tive attached,  standing  on  one  of  the  tracks,  and  liable  to  start  any  moment,  and 
on  his  Left,  according  to  his  witnesses,  was  the  omnibus  in  close  proximity  to  the 
Crossing.  Now,  for  these  circumstances  the  plaintiff  was  in  no  wise  responsible, 
and  tin-  question  is,  whether  they  constituted  any  excuse  for  his  not  looking  up 
the  road."  In  Brooks  v.  Buffalo  &  Niagara  Falls  Railw.,  25  Barb.  600,  it  is  said 
if  one  cross  a  railway  at  grade  with  a  team,  where  the  danger  may  easily  be  seen 
by  looking  for  it,  and  especially  where  he  drives  upon  the  railway  track  and  there 
stop-,  looking  in  an  opposite  direction  from  an  approaching  train  till  it  strikes 
him,  he  i>  guilty  of  such  negligence  as  will  preclude  a  recovery. 

\V vnn  v.  Allard,  o  Watts  &  Serg.  524;    Kerwhaker  v.  C.  C.  &  Cincinnati 
Railw..  :;  Ohio  (X.  s.),  172,  L88. 

1  Trow  r.  Vermont  Central  Railw.,  24  Vt.  487;  Isbell  v.  N.  Y.  &  N.  H. 
Railw.  Co.,  27  Conn.  393;  8.  c.  2  Redf.  Am.  Railw.  Cases,  474;  Chicago  &  R. 
I.  Railw.  v.  Still,  19  Illinois,  499. 

[*547] 


§  133.  LIABILITY   FOR   INJURY   IN   THE    NATURE   OF   TORTS.  573 

5.  If  a  railway  wholly  omit  to  give  the  proper  signal  at  a  road- 
crossing,  they  are  not  necessarily  liable  for  injury  to  one  crossing 
at  that  moment,  whose  team  took  fright  and  injury  ensued.  It 
should  be  shown  that  the  omission  had  some  tendency  to  produce 
the  loss.12  The  statute  requiring  railway  companies  to  make 
signals  in  all  cases  of  crossing  highways,  applies  to  crossings 
above  or  below  the  grade  of  the  highway,  as  well  as  to  those  at 
grade.13 

6.  A  conductor  was  held  not  liable  for  running  the  engine  over 
an  animal  trespassing  upon  the  track,  unless  he  acted  wilfully.14 
*  So,  too,  where  the  train  passed  over  slaves  asleep  upon  the  track, 
the  company  were  held  not  liable.15 

12  Galena  &  Ch.  Raihv.  v.  Loomis,  13  Illinois,  518.  A  railway  is  not  liable 
for  an  injury  which  happens  in  crossing  a  railway,  in  consequence  of  the  station- 
ary cars  of  the  company,  upon  their  track,  obstructing  the  view  of  the  plaintiff 
in  his  approach  to  the  road.  Burton  v.  The  Raihv.  Co.,  4  Harr.  252.  See  also 
Morrison  v.  Steam  Nav.  Co.,  20  Eng.  L.  &  Eq.  267,  455;  8  Exch.  783. 

13  People  v.  New  York  Central  Raihv.,  25  Barb.  199. 

14  Vandegrift  v.  Rediker,  2  Zab.  185.  But  where  the  act  is  wrongful,  the 
action  may  be  against  both  the  engineer  and  fireman.  Suydam  v.  Moore, 
8  Barb.  358. 

15  Herring  v.  Wil.  &  R.  Railw.,  10  Iredell,  402.  In  this  case,  it  is  held  that 
the  engineer  might  not  be  chargeable  with  the  same  degree  of  culpability  in 
driving  his  train  over  a  rational  creature,  or  one  who  seemed  to  be  such,  and  in 
the  exercise  of  his  faculties,  as  in  doing  the  same  when  the  obstruction  was  a 
brute  animal.  And  in  the  case  of  running  over  a  person  asleep,  or  a  deaf-mute, 
or  an  insane  person,  some  indulgence  is,  doubtless,  to  be  extended,  inasmuch 
as  the  peculiar  state  of  the  person  might  not  be  readily  discoverable  by  those  in 
charge  of  the  train  ;  if  not  they  would  have  a  right  to  calculate  that  they  would 
conduct  like  other  rational  beings,  and  step  off  the  track  as  the  engine  approaches. 
But  in  East  Tennessee  &  Ga.  Railw.  v.  St.  John,  5  Sneed,  524,  it  was  held  that 
the  company  were  responsible  for  killing  a  slave  asleep  on  the  track,  who  might 
have  been  seen  by  the  conductor  a  quarter  of  a  mile,  but  who  was  mistaken  for 
the  garments  of  the  laborers,  and  no  signal  given  in  consequence. 

The  practice  of  allowing  persons  to  walk  upon  a  railway  track  is  a  vicious  one, 
and  one  which  would  not  be  tolerated  in  any  state  or  country  where  the  railways 
are  under  proper  surveillance  and  police.  But  as  it  now  is  in  many  parts  of 
this  country,  an  engineer  will  find  some  person  upon  his  track  every  mile,  and  in 
some  places,  every  few  rods.  If  he  were  required  to  check  the  train  at  every 
such  occurrence,  it  would  become  an  intolerable  grievance.  If  men  will  insist 
upon  any  thing  so  absurd  as  to  be  permitted  to  walk  upon  a  railway  track  at 
will,  they  must  expect  that  those  who  are  bereft  of  sense,  but  preserve  the  form 
of  humanity,  when  they  chance  to  come  into  the  same  peril,  will  perish  ;  not  so 
much  from  their  own  infirmities,  as  from  the  absurd  practices  of  those  who  have 
no  such  infirmities.     And  their  destruction  is  not  so  much  attributable,  perhaps, 

[*548J 


57  I  LIABILITY   FOR   CONTRACTORS,    AGENTS,    ETC.  PART  VI. 

*  7.   The  duty  required  of  railways  towards  those  who  are,  at 
the  time,  in  the  exercise  of  their  legal  rights,  is  the  possession  of 

to  the  fault  of  the  railways,  as  to  the  bad  taste,  and  lawlessness  of  public  opinion, 
in  making  such  absurd  demands  upon  the  indulgence  of  railways.  And,  if  it  be 
urged  thai  the  companies  might  enforce  their  rights,  and  keep  people  of?  their 
tracks,  it  would  be  found,  we  fear,  upon  trial,  that  such  arguments  are  unsound. 
I'lir  companies  probably,  could  not  enforce  such  a  regulation,  in  many  parts  of 
the  country,  without  exciting  a  perplexing  and  painful  prejudice,  to  such  an  ex- 
tent as  to  endanger  the  safety  of  their  business.  The  only  effectual  remedy  will 
be  found  in  making  the  act  punishable  by  fine  and  imprisonment,  as  is  done  in 
England  and  some  of  the  American  states,  and  in  a  strict  enforcement  of  the  law 
upon  all  offenders.  Every  one  can  see  that,  if  sane  persons  were  excluded  from 
the  railway,  the  sight  of  a  person  upon  the  track  would  at  once  arrest  the  attention 
of  conductors  of  trains,  and  there  would  be  little  danger  comparatively  of  the 
dot  ruction  of  any  one,  whereas  now,  persons  bereft  of  sense  are  almost  sure  to  be 
run  over.  Persons  are  so  frequently  upon  the  track  that  the  conductors  have  no 
alternative  but  to  push  their  trains  upon  them.  For  such  persons  are,  not  unfre- 
quently,  so  reckless,  that,  if  they  could  alarm  engineers,  they  would  be  found 
trying  such  experiments  every  hour.  One  who  is  engaged  in  sawing  wood 
upon  the  track  of  a  railway  by  direction  of  the  superintendent  of  the  company, 
and  is  injured  by  the  engine  of  another  company,  lawfully  upon  the  track,  can- 
not recover  of  the  latter  company,  although  their  engineer  was  guilty  of  careless- 
ness,  being  himself  also  in  fault.  Railroad  v.  Norton,  24  Penn.  St.  465.  In 
Ranch  v.  Lloyd  &  Hill,  31  Penn.  St.  358,  it  was  decided,  that  where  the  state 
owned  the  railway,  and  its  regulations  were  prescribed  by  the  canal  commission- 
ers, and  the  state  supplied  the  motive  power,  and  allowed  persons  to  use  their 
cars,  furnishing  a  conductor,  that  such  conductor  is  the  responsible  person  in 
charge  of  the  train  throughout  its  entire  route.  That  the  agencies  provided  for 
him,  whether  of  steam  or  horse  power,  become  his  agencies,  and  the  ultimate 
responsibility  in  regard  to  their  proper  conduct,  so  far  as  strangers  are  con- 
cerned, rests  upon  him  and  upon  the  owners  of  the  train,  whose  servant  he  is. 
And  where  it  was  the  practice  to  have  cars  pass  over  a  portion  of  the  road 
by  the  force  of  gravity,  and  after  arriving  at  a  given  point,  to  be  drawn  by  horse 
power  to  the  storehouses,  and  the  conductor  left  them  standing  across  the  usual 
crossing  of  the  highway  and  went  to  his  breakfast,  and  during  his  absence  a  lad, 
seven  years  old,  attempted  to  crawl  under  the  cars,  in  returning  from  an  errand 
on  which  he  had  been  sent,  and  by  means  of  the  starting  of  the  train  by  the  horse 
power,  furnished  by  a  stable-keeper,  by  contract  with  the  state,  and  driven  by 
the  proprietors1  drivers,  was  seriously  injured,  it  was  considered  that  the  con- 
ductor and  his  employers  were  responsible  for  the  injury.  It  was  also  decided 
that  where  ears  were  so  left  standing  in  the  highway  unnecessarily,  it  is  not  a 
question  to  be  submitted  to  the  jury,  whether  they  constitute  an  unlawful  obstruc- 
tion. As  matter  of  law,  such  obstruction,  if  it  could  be  avoided,  is  unlawful.  In 
smh  a  ease,  no  greater  care  and  prudence  is  required  to  be  exercised  by  such 
child  than  it  is  reasonable  to  expect  of  one  of  such  tender  years.  See  Galena  & 
Ch.  Railw.  v.  Jacobs,  20  111.  478. 

[*549] 


§  133.  LIABILITY    FOR   INJURY   IN    THE    NATURE   OF   TORTS.  575 

the  most  approved  machinery,  and  such  care,  diligence,  and  skill 
in  using  it  as  skilful,  prudent,  and  discreet  persons  would  be  ex- 
pected to  put  forth,  having  a  proper  regard  to  the  interests  of  the 
company,  the  demands  of  the  public,  and  the  interests  of  those 
having  property  along  the  road,  exposed  to  fire,  and  to  injury  in 
other  modes.16  They  are,  at  least,  bound  to  .exercise  as  much 
care  as  if  they  owned  the  property  along  the  line,  i.  e.,  what 
would  be  regarded  as  the  duty  of  a  prudent  owner  under  all  the 
circumstances.17  It  has  been  held  that  the  company,  when  their 
*  road  passes  the  thoroughfares  of  a  city,  are  bound  to  use  extraor- 
dinary care  not  to  injure  persons  in  the  streets.18 

8.  The  general  rule,  in  regard  to  the  time  of  the  accruing  of 
the  action  is,  that  when  the  act  or  omission  causes  direct  and 
immediate  injury,  the  action  accrues  from  the  time  of  doing  the 
act,  but  where  the  act  is  injurious  only  from  its  consequences, 
as  by  undermining  a  house  or  wall,  or  causing  water  to  flow 
back  at  certain  seasons  of  high  tide  or  high  water,  the  cause  of 
action  accrues  only  from  the  consequential  injury.19     In  the  case 

16  Baltimore  &  Susq.  Railw.  v.  Woodruff,  4  Maryland,  242,  257.  And  it  is 
said  in  Mersey  Docks  v.  Gibbs,  Law  Rep.  1  H.  Lds.  93,  that  if  one  would  be 
responsible  for  injury  resulting  from  a  cause  of  mischief,  of  whose  existence  he 
has  knowledge,  he  will  be  equally  so  if  he  is  negligently  ignorant  of  its  existence. 

17  Quimby  v.  Vermont  Central  Railw.,  23  Vt.  387.  And  where  one  was 
injured  by  the  company's  train,  at  a  road-crossing,  by  collision  between  the  com- 
pany's locomotive  and  the  carriage  in  which  the  plaintiff  was  riding,  it  was  held, 
that  the  carelessness  of  the  driver  of  the  carriage  cannot  be  shown  by  common 
reputation.  Nor  can  the  occupation  of  the  plaintiff,  and  his  means  of  earning 
support,  be  shown,  with  a  view  to  enhance  the  damages  for  such  an  injury,  unless 
specially  averred  in  the  declaration.  Baldwin  v.  Western  Railw.,  4  Gray,  333. 
In  O'Brien  v.  Philadelphia,  Wilmington,  &  Baltimore  Railw.,  10  Am.  Railw. 
Times,  No.  13,  where  plaintiff  was  injured  at  a  railway  crossing  a  highway,  by 
collision  with  his  team,  Mr.  Justice  Woodward,  of  the  Pennsylvania  Supreme 
Court,  charged  the  jury,  that  the  plaintiff  was  only  entitled  to  compensatory 
damages,  there  being  no  pretence  of  any  intentional  wrong,  or  tlagrant  rashness, 
on  the  part  of  the  agents  of  the  company. 

18  Wilson  v.  Cunningham,  3  Cal.  241  ;  post,  pi.  15,  n.  31,  32,  33. 

19  Roberts  v.  Read,  16  East,  215.  Where  the  act  complained  of  was  mali- 
ciously opposing  plaintiff's  discharge  as  an  insolvent,  and  the  act  was  more  than 
six  years  before  action  brought,  but  the  consequent  imprisonment  continued 
within  the  six  years,  it  was  held  the  cause  of  action  was  barred.  Violet  r.  Simp- 
son, 30  Law  Times,  114;  s.  c.  8  El.  &  Bl.  344.  The  admissions  of  the  corpo- 
rators, or  of  the  president,  are  not  sufficient  to  remove  the  bar  of  the  statute  of 
limitations,  in  favor  of  a  private  corporation.  Lyman  v.  Norwich  University, 
28  Vt.  560. 

[*550] 


576  LIABILITY   FOR   CONTRACTORS,    AGENTS,    ETC.  PART  VI. 

of  Backhouse  v.  Bonomi,20  it  was  held  that  no  cause  of  action 
accrued  from  defendant's  excavation  in  his  own  land,  until  it 
caused  damage  to  the  plaintiff's;  and  the  case  of  Nicklin  v.  Wil- 
liams. -'  as  far  as  it  conflicts  with  this,  was  held  not  maintainable. 
The  cases  were  examined  very  thoroughly  in  the  course  of  the 
discussion  of  this  case  before  the  Queen's  Bench,  which  held  that 
the  cause  of  action  accrued  from  the  act  of  defendant,  and  in 
the  Exchequer  Chamber,  where  that  judgment  was  reversed,  and 
finally  in  the  House  of  Lords,  where  the  judgment  of  the  Ex- 
chequer Chamber  was  affirmed.  The  law  on  this  point  may  now 
be  considered  settled  in  the  English  courts.  Where  the  issue  is 
in  regard  to  the  prudent  use  of  a  highway  by  the  company,  it  is 
*  not  competent  to  give  evidence  of  the  mode  of  using  the  same 
by  the  company  at  other  times.22 

9.  As  a  general  rule,  in  the  English  practice,  and  in  most  of 
the  states  of  the  Union,  in  actions  for  torts,  where  the  defend- 
ant's conduct  has  been  wanton,  or  the  result  of  malice,  the  jury 
are  allowed  to  give  damages  of  an  exemplary  character,  and  the 
term  vindictive  even  is  sometimes  used.23  But  this  is  questioned 
by  some  writers,  and  in  many  cases.24 

10.  Where  a  level  crossing  over  a  railway  is  protected  by  a 
gate,  established  by  the  company  and  tended  by  one  of  its  ser- 
vants, in  conformity  with  the  law,  those  having  occasion  to  cross 
the  track,  and  who  are  injured  by  an  attempt  to  cross  when. the 
gate-keeper  assures  them  the  line  is  clear,  may  recover  dam- 
ages of  the  company.  It  is  the  implied  duty  of  the  gate-keeper 
to  know  when  trains  are  due,  and  to  give  correct  information  in 
that  respect,  and  not  open  a  gate  for  passage  across  the  track 
unless  he  knows  no  duly  advertised  train  is  due.     And  if  a  train 

20  9  Ho.  Lds.  503;  s.  c.  El.,  Bl.  &  El.  646;  Id.  622;  7  Jur.  (N.  S.)  809; 
s.  c.  .".  Jur.  (N.  S.)  1345;  4  id.  1182. 

-1    L0  Exch.  l'59.' 

52  Gahagan  v.  Boston  &  Lowell  Railw.,  1  Allen,  187. 

-  . :  ick  on  Dam.  38,  98,  454  ;  post,  §§  176,  197.  In  the  case  of  Sbaw  v. 
Boston  &  Worcester  Railw.,  ante,  n.  4,  where  the  plaintiff's  husband  was  killed, 
by  tin-  same  collision,  and  she  was  shown  to  have  had  a  family  of  young  children, 
and  (o  be  without  sufficient  property  for  their  support,  it  was  held  to  be  error  in 
the  court  not  to  charge  the  jury,  when  specially  requested  so  to  do,  that  these 
facts  could  not  be  considered  by  them  in  estimating  damages. 

''  Appendix  to  Sedgwick  on  Dam.  609  ;  Varillat  v.  N.  Orleans  &  Car.  Railw., 
10  La.  Ann.  88;  Taylor  v.  Railw.  Co.,  48  N.  H.  304. 


§  133.  LIABILITY   FOR   INJURY   IN   THE   NATURE   OP   TORTS.  577 

not  advertised  to  the  gate-keeper,  or  at  a  time  not  advertised 
to  him,  is  allowed  to  pass,  whereby  injury  accrues  to  those  hav- 
ing just  occasion  to  pass  the  track,  it  is  the  fault  of  the  com- 
pany.25 

11.  And  where  a  railway  company  make  a  private  crossing  over 
their  track,  at  grade,  in  a  city,  and  allow  the  public  to  use  it  as 
a  highway,  and  station  a  flagman  there  to  warn  persons  of  the 
approach  of  trains,  they  will  be  held  responsible  in  damages  to 
any  one,  who,  in  the  exercise  of  proper  care,  is  induced  to  cross 
by  signal  from  the  company's  flagman  that  it  is  safe,  he  being 
damaged  by  collision  with  approaching  trains,  through  this  neg- 
ligence of  the  flagman.26 

12.  In  the  English  courts,  the  cases  in  regard  to  responsibility 
on  the  part  of  the  companies  for  injuries  at  the  crossings  of  high- 
ways *  and  private  ways,  do  not  seem  always  entirely  consistent 
with  each  other,  the  rule  being  never  to  disturb  a  verdict  where 
the  damages  are  at  all  reasonable,  provided  there  was  any  proof, 
although  the  slightest,  of  the  omission  of  duty  on  the  part  of  the 
company's  servants,  and  provided  also  that  the  plaintiff  was  not 
himself  in  fault.  In  two  recent  cases,  there  were  no  watchmen 
or  gate-tenders  present,  at  crossings  of  public  ways  ;  and  in  both 
instances  foot-passengers  were  run  down  by  passing  trains  in 
crossing.  In  one  case,27  there  seemed  no  specific  omission  by 
the  company,  and  the  court  held  them  not  liable  ;  in  the  other 

25  Lunt  v.  London  &  N.  W.  R.  Co.,  Law  Rep.  1  Q.  B.  277;  s.  c.  12  Jur. 
(N.  S.)  409. 

26  Sweeny  v.  Old  Colony  &  Newport  Railw.,  10  Allen,  368.  The  company  is 
not  bound  to  keep  a  flagman  at  road-erossings  to  warn  travellers,  unless  in  ex- 
ceptionally dangerous  places.  But  by  keeping  a  flagman  at  a  particular  crossing 
the  company  may  have  excited  such  expectation  of  being  warned  of  danger,  as 
to  make  it  negligence  to  withdraw  such  flagman.  Ernst  v.  Hudson  Riv.  Railw., 
39  N.  Y.  61.  See  also  Beisiegel  v.  N.  Y.  Cent.  Railw.,  40  N.  Y.  9  ;  s.  c.  1  Redf. 
Am.  Railw.  Cases,  648;  Grippen  v.  Same,  id.  34.  The  fact  that  a  crossing  has 
remained  for  many  years  without  any  protection,  and  no  complaint  has  been  made 
by  the  municipal  authorities  or  any  demand  made  for  a  gate  or  flagman,  or  any 
other  protection  to  travellers,  is  proper  to  be  considered  in  estimating  the  duty  of 
the  company  in  that  respect,  although  not  decisive.  The  duty  of  the  company  is 
to  be  decided  by  the  jury,  under  proper  instructions,  from  a  consideration  of  all 
the  facts.  But  if  there  is  no  evidence  of  negligence,  or  it  is  insufficient,  the  ver- 
dict finding  it  will  not  be  sustained.     Comm.  v.  B.  &  W.  Railw.,  101  Mass.  201. 

27  Stubley  v.  London  &  N.  W.  Railw.,  Law  Rep.  1  Exch.  13. 

vol.   i.  '  L    ,,')-'J 


578  LIABILITY   FOR   CONTRACTORS,    AGENTS,    ETC.  PART  VI. 

case,2s  the  gates  were  partly  open,  contrary  to  the  statutes,  and 
the  court   refused  to  set  aside  a  verdict  against  the  company. 

13.  In  a  late  case.'-'  where  the  duty  of  railways  at  level  road- 
cro8sings  is  considerably  discussed,  it  is  declared  that  the  railway 
has  the  right  of  way  before  all  others,  and  that  negligence  is  not 
to  be  presumed  from  rate  of  speed  alone.  It  is  also  here  declared, 
that  the  party  injured  is  not  to  be  presumed  innocent  of  all  fault, 
but  that  fact  must  be  proved,  either  by  direct  evidence  or  the  cir- 
cumstances attending  the  accident. 

14.  Where  one  was  thrown  from  his  carriage  at  the  intersection 
of  the  railway  and  highway,  his  horse  being  rendered  unmanage- 
able by  the  sounding  of  the  whistle  as  a  signal  for  starting  the 
train,  it  was  held  that  railways  had  the  right  to  establish  and  use 
necessary  and  proper  signals  for  the  conduct  of  their  business ; 
that  this  should  be  done  with  reference  to  the  convenience  of 
others  as  well  as  themselves ;  and  whether  the  company  fail  in  so 
doing  must  be  left  to  the  jury  in  each  case,  except  so  far  as  public 
use  and  convenience  have  settled  the  matter,  which  may  be  shown 
by  evidence.30 

15.  Where  a  stranger  is  injured  by  a  passenger  train  the  pre- 
sumption is  in  favor  of  the  carriers,  and  the  party  injured  must 
prove  negligence.31  The  carrier  by  railway  is  bound  to  exercise 
such  care  and  watchfulness  in  moving  trains  about  a  city,  as  a  due 
regard  to  the  despatch  of  his  own  business  and  the  safety  of 
those  in  the  streets  will  fairly  justify  or  require.32  But  where  one 
exposes  himself  recklessly,  as  by  being  in  a  car  house  without  the 
knowledge  of  the  company,  or  attempts  to  cross  the  railway  track, 
when  the  train  is  within  forty  feet,  he  cannot  recover.33 

29  Stapley  v.  London  B.  &  So.  Coast  Railw.,  L.  R.  1  Exch.  21 ;  s.  p.  Wanless 
v.  The  North  Eastern  Railw.,  L.  R.  6  Q.  B.  481. 

M  Warner  v.  New  Y.  Central  Railw.,  44  N.  Y.  465. 

30  Hill  v.  Tort.  &  Rochester  Railw.,  55  Me.  438.  The  rule  of  law  and  the 
mode  of  trial  applicable  to  this  class  of  cases  are  here  considerably  discussed. 
Passenger  carriers  by  steamboat  do  not  owe  the  same  degree  of  care  to  other 
vessels  to  avoid  collision,  which  they  do  to  their  passengers.  P.  W.  &  Bait. 
Railw.  v.  Kerr,  25  Aid.  521.     See  1  Redf.  Lead.  Railw.  Cases,  648,  669,  et  seq. 

31  Baltimore  &  Ohio  Railw.  v.  Bahrs,  28  Md.  647. 

12  Bannon  v.  Baltimore  &  Ohio  Railw.,  24  Md.  108.  The  fact  that  the  person 
injured  was  an  infant,  will  not  affect  the  duty  of  the  company.     lb. 

n  Lehey  v.  Hudson  R.  Railw.,  4  Rob.  (N.  Y.)  204;  Schwartz  v.  Same,  id. 
347.     See  also  Edgerton  v.  N.  Y.  &  N.  H.  Railw.,  39  N.  Y.  227. 

[*552] 


§134. 


MISCONDUCT    OF    OPERATIVES   SHOWN    BY    EXPERTS. 


579 


16.  In  one  case  u  the»court  very  properly  held  the  company  re- 
sponsible where  the  engineer,  near  a  road  crossing,  negligently  or 
maliciously  let  off  steam,  whereby  a  person's  horses  about  passing 
the  crossing  were  frightened,  and  he  thereby  received  injuries. 


SECTION    VI. 


Misconduct  of  Railway  Operatives  shoivn  by  Exjjerts. 


1.  The  management  of  a  train  of  cars  is  so 

far  matter  of  science  and  ait,  that  it  is 
proper  to  receive  the  testimony  of  experts. 

2.  In  cases  of  alleged  torts  company  not  bound 

to  exculpate. 

3.  So,  too,  the  plaintiff  is  not  bound  to  pro- 

duce testimony  from  experts. 


4.  The  jury  are  the  final  judges  in  such 
cases.  But  omission  to  produce  testi- 
mony of  experts  will  often  require  expla- 
nation. 

n.  6.  General  rules  of  law  in  regard  to  the 
testimony  of  experts. 


§  134.  1.  The  conduct  of  a  railway  train  is  not  strictly  matter 
of  science  perhaps.  Its  laws  are  not  so  far  defined,  and  so  ex- 
empt from  variation,  as  to  be  capable  of  perfect  knowledge,  like 
those  of  botany  and  geology,  and  other  similar  sciences,  or  even 
those  of  medicine  and  surgery  perhaps,  whose  laws  are  subject  to 
more  variation.1  But  they  are  nevertheless  so  far  matters  of 
skill  and  experience,  and  are  so  little  understood  by  the  com- 
munity generally,  that  the  testimony  of  inexperienced  persons 
in  regard  to  the  conduct  of  a  train,  on  a  particular  occasion,  or 
under  particular  circumstances,  would  be  worthy  of  very  little 
reliance.  They  might  doubtless  testify  in  regard  to  what  they 
saw,  and  what  appeared  to  be  the  conduct  of  the  operatives,  but 
those  skilled  in  such  matters  might,  as  experts  in  other  cases  are 
*  allowed  to  do,  express  an  opinion  in  regard  to  the  conduct  of 
the  train,  as  shown  by  the  other  witnesses,  and  how  far  it  was 
according  to  the  rules  of  careful  and  prudent  management,  and 
what  more  might,  or  should    have  been  done,  consistently  with 

34  Toledo  W.  &  Western  Railw.  v.  Harmon,  47  111.  208.  This  case  illustrates 
a  very  common  nuisance,  which  has  attracted  considerable  attention  in  some  parts 
of  the  country,  where  the  sick,  and  even  well  persons,  at  night,  suffer  very  seri- 
ous annoyances,  from  the  continuous  ring  of  steam  whistles,  done  more  for  the 
amusement  of  the  engineers  than  from  any  absolute  necessities  of  the  business. 

1  Quimby  v.  Vermont  Central  Railw.,  23  Vt.  394,  395. 

[*553] 


580  LIABILITY    FOR   CONTRACTORS,    AGENTS,    ETC.  PART  VI. 

the  safety  of  the  train,  in  the  particular  emergency.2  But  where 
the  plaintiff,  who  claimed  damages  on  account  of  the  misconduct 
of  a  flagman  at  a  railway  crossing,  had  attempted  to  prove  that 
he  was  a  careless  and  intemperate  person,  it  was  held  that  the 
company  might  show  that  he  was  careful,  attentive,  and  tem- 
perate, and  that  these  facts  might  be  proved  by  those  who  had 
seen  his  conduct,  and  need  not  be  shown  by  experts.3 

2.  But  a  railway  company,  when  sued  for  misconduct,  are  not 
bound,  in  the  first  instance,  ordinarily,  to  show,  by  the  testimony 
of  experts,  that  they  were  guilty  of  no  mismanagement.  But  in 
the  case  of  an  injury  to  passengers,  the  rule  is  otherwise.4 

3.  And  it  has  been  said,  that  one  who  brings  an  action  against 
a  railway  founded  upon  negligence  and  misconduct,  is  not  bound 
in  opening  his  case,  to  show,  that  by  the  laws  and  practice  of 
railway  companies  there  was  mismanagement  in  the  particular 
case.  If  he  sees  fit  to  trust  that  question  to  the  good  sense  of  the 
jury,  he  may.5 

4.  But  it  is  obvious,  that  in  cases  of  this  kind,  although  the 
jury  are  ultimately  to  determine,  upon  such  light  as  they  can 
obtain,  and  will  be  governed  a  good  deal  by  general  principles 
of  reason  based  upon  experience,  and  that  the  testimony  of  wit- 
nesses, unskilled  in  the  particular  craft,  will  doubtless  have  a  con- 
siderable influence  in  establishing  certain  remote  principles,  by 
which  all  men  must  be  governed,  in  extreme  cases,  neverthe- 
less, in  that  numerous  class  of  cases,  in  courts  of  justice,  which 
have  to  be  determined  upon  a  nice  estimate  and  balance  of  con- 
flicting testimony,  the  opinion  of  experienced  men  in  the  par- 
ticular *  business,  must  be  of  very  controlling  influence.  And  it 
is  very  well  understood,  that  generally,  the  fact  that  such  evidence 

2  Illinois  Central  Railw.  v.  Reedy,  17  111.  580,  583.  Caton,  J.  :  "  The 
burden  of  proof  is  on  the  plaintiff,  and  it  is  for  him  to  show,  by  facts  and  circum- 
stances, and  by  those  acquainted  with  the  management  of  trains,  who  could  speak 
nnderstandingly  on  the  subject,  that  it  was  practicable  and  easy  to  have  avoided 
the  collision,  and  that,  in  not  doing  so,  those  in  charge  of  the  train  were  guilty 
of  that  toeasure  of  carelessness,  or  wilful  misconduct,  which  the  law  requires  to 
establish  the  liability.1' 

3  Gahagan  v.  Boston  &  Lowell  Railw.,  1  Allen,  187. 

4  Post,  j  192  ;  Galena  &  Chicago  Railw.  v.  Yarwood,  17  111.  509. 

5  Quimby  v.  Vermont  Central  Railw.,  23  Vt.  394,  395.  Evidence  of  the 
good  or  bad  habits  of  servants  has  sometimes  been  received  in  cases  of  alleged 
negligence ;  but  in  general  no  such  evidence  is  admissible,  since  the  master  is  re- 

[*554] 


§  134.  MISCONDUCT   OF   OPERATIVES   SHOWN    BY    EXPERTS.  581 

is  not  produced,  unless  the  omission  is  explained,  will  tend  to 
raise  a  presumption  against  the  party.6 

sponsible  for  what  his  servant  does,  and  not  for  what  he  might  have  been  expected 
to  do.  Hays  v.  Meller,  11  Law  Reg.  (N.  S.)  370;  Tenny  v.  Tuttle,  1  Allen, 
185. 

6  Murray  v.  Railroad  Company,  10  Rich.  (S.  C.)  227.  As  we  find  few  cases 
in  the  books  bearing  upon  this  general  question,  in  regard  to  railways,  we  may 
refer  to  analogous  subjects  where  the  question  has  arisen.  Nautical  men  may 
testify  their  opinion,  whether,  upon  the  facts  proved  by  the  plaintiff,  the  collision 
of  two  ships  could  have  been  avoided,  by  proper  care  on  the  part  of  defendants' 
servants.  Fenwick  v.  Bell,  1  C.  &  K.  312.  So,  too,  in  regard  to  the  proper 
stowage  of  a  cargo.  Price  v.  Powell,  3  Comst.  322.  So  a  master,  engineer,  and 
builder  of  steamboats,  may  testify  his  opinion,  upon  the  facts  proved,  as  to  the 
manner  of  a  collision.  The  Clipper  v.  Logan,  18  Ohio,  375;  Sills  v.  Brown,  9 
C.  &  P.  601.  It  has  been  held,  that  even  experts  may  not  be  called  to  express 
an  opinion,  whether  there  was  misconduct  in  the  particular  case  on  trial,  as  that 
is  the  province  of  the  jury,  but  that  they  may  express  their  opinion  upon  a  pre- 
cisely similar  case,  hypothetically  stated,  which  seems  to  be  a  very  nice  distinc- 
tion, and  which  is  combated  in  a  very  sensible  note  to  Fenwick  v.  Bell,  47  Eng. 
Com.  Law  R.  312.  The  opinion  of  Lord  Ellenborough,  in  Beckwith  v.  Sydebo- 
tham,  1  Camp.  116,  117,  that  where  there  is  a  matter  of  skill  or  science  to  be 
decided,  the  jury  may  be  assisted  by  the  opinion  of  those  peculiarly  accpiainted 
with  it,  from  their  professions  and  pursuits,  seems  to  us  more  just  and  wise.  We 
have  always  regarded  the  testimony  of  experts,  as  a  sort  of  education  of  the  jury 
upon  subjects  in  regard  to  which  they  are  not  presumed  to  be  properly  instructed. 
The  distinction  we  make  upon  the  subjects,  where  we  allow  the  testimony  of 
experts,  and  where  we  do  not,  shows  this.  The  nearer  the  testimony  comes  to 
the  very  case  in  hand,  the  more  pertinent  and  useful.  And  the  finesse  of  keep- 
ing the  very  case  out  of  sight  by  name,  but  describing  it  by  allegory,  in  asking 
the  opinion  of  the  experts,  is  scarcely  equalled  by  the  device  of  certain  species 
of  birds,  who  imagine  themselves  invisible  to  others  because  they  are  so  to  them- 
selves. It  is  not  unlike  asking  a  witness  in  regard  to  the  genuineness  of  hand- 
writing, in  dispute  before  a  jury,  and  which  is  to  be  determined  by  them,  and 
this  is  always  allowed  without  question.  And  in  all  such  questions,  there  is 
likely  to  be  so  much  disagreement  among  the  experts,  as  to  leave  the  jury  a 
sufficient  duty  to  perform.  But  the  more  common  practice  is  according  to  the 
rule  in  Sills  v.  Brown.  In  an  action  against  a  railway  company  for  carrying 
their  road  through  plaintiff's  pasture,  throwing  down  his  fences,  and  scattering, 
frightening,  and  injuring  his  cattle,  it  was  held  that  an  experienced  grazier  is 
competent  to  testify  as  an  expert  in  regard  to  the  state  of  cattle  and  to  causes 
affecting  their  weight  and  health  on  a  supposed  state  of  facts.  But  that  Such  per- 
son could  not  express  an  opinion  upon  the  facts  proved  in  the  particular  case,  on 
the  point  to  be  determined  by  the  jury.  Baltimore  &  Ohio  Railw.  v.  Thompson, 
10  Md.  76.  In  Webb  v.  Manchester  &  Leeds  Railw.,  4  Myl.  &  Cr.  116;  s.  c. 
1  Railw.  C.  576,  a  point  involving  questions  of  practical  science  being  in  dispute, 
and  the  testimony  conflicting,  it  was  referred  to  an  engineer  for  his  opinion,  and 
his  conclusion,  *  in  regard  to  the  facts,  adopted  and  made  the  basis  of  the  order  of 

[*555] 


582  LIABILITY   FOR   CONTRACTORS,   AGENTS,   ETC.  PART  VI. 

court.  In  the  case  of  Seaver  v.  Boston  &  Maine  Railw.  Co.,  14  Gray,  466,  after 
several  experts  called  by  the  plaintiff  had  testified,  upon  a  statement  of  facts  and 
circumstances  of  the  accident,  what  in  their  opinion  threw  the  cars  from  the 
tracks,  the  defendants  were  permitted  to  ask  a  machinist  who  had  been  connected 
for  many  years  with  railways,  and  with  the  running  of  cars  and  engines  upon 
tin  in.  ami  who  was  in  the  cars  at  the  time  of  the  accident,  and  saw  the  occur- 
and  all  the  attending  circumstances,  what  in  his  opinion  threw  the  cars 
from  the  track,  and  it  was  held  no  ground  of  exception.  We  had  occasion,  in 
our  book  on  Wills,  pt.  1,  §  15,  pp.  135-159,  to  examine  the  subject  of  the  testi- 
mony iif  experts  upon  the  question  of  mental  soundness  in  all  its  bearings. 
Many  of  the  principles  there  laid  down,  and  especially  the  course  of  practice, 
will  apply  to  the  general  bearing  of  this  class  of  testimony  in  other  cases. 

[*555] 


§  135.      RAILWAY   DIRECTORS.  —  EXTENT   OF   THEIR    AUTHORITY.        583 


CHAPTER    XXI. 

RAILWAY    DIRECTORS. 


SECTION    I. 


Extent  of  the  Authority  of  Railway  Directors. 


1.  Notice  to  one  director,  if  express,  sufficient. 

2.  Applications  to  the  legislature  for  enlarged 

powers,  and  sale  of  company's  works, 
require  consent  of  shareholders. 

3.  Constitutional  requisites  must   be   strictly 

followed. 

4.  Directors,  or  shareholders,  cannot  alter  the 

fundamental  business  of  the  company. 

5.  Inherent  difficulty  of  defining  the  proper 

limits  of  railway  enterprise, 
n.  9.   Opinion  of  Lord  Lsmgdale,  and  review 
of  cases  on  this  subject. 

6.  An  act  ultra  vires  can  only  be  confirmed 

by  actual  and  not  by  constructive  assent. 

7.  The  directors  of  a  trading  company  may 

give  bills  of  sale  in  security  for  debts 
contracted  by  them. 

8.  Directors  cannot  bind  company  except  in 

con fbnu  ity  with  charter. 

9.  Company  cannot  retain  money  obtained  by 

fraud  of  directors. 


10.  Bat  it  must  appear  the  plaintiff  ivas  mis- 

led without  his  own  fault. 

11.  Company,  by  adopting  act  of  directors, 

are  liable  to  make  recompense. 

12.  A  prospectus  and  report  should  contain 

the  whole  truth. 

13.  Directors  cannot  issue  shares  to  procure 

votes  and  control  corporation. 

14.  What  will  amount  to  fraud  in  the  reports 

of  the  company. 

15.  Directors  responsible  for  fraudulent  acts 

and  representations. 

16.  Extent  of  power  of  directors. 

17.  Represent   the   company    as   to    the   em- 

ploye's. 

18.  Court  of  equity  will  not  require  a  useless 

or  injurious  act,  even  to  remedy  a  pro- 
ceeding ultra  vires. 

19.  If  the  corporation  knowingly  accept  the 

avails  of  a  contract,  it  will  amount  to 
ratification, 
n.  25.  Notice.     Estoppel. 


§  135.  1.  We  have  elsewhere  stated,  in  general  terms,  the  power 
of  the  directors  of  the  company  to  bind  them.1  The  board  of 
directors  ordinarily  may  do  any  act,  in  the  general  range  of  its 
business,  which  the  company  can  do,  unless  restrained  by  the 
charter  and  by-laws.2     Notice  to  one  of  a  board  of  directors,  in 

1  Ante,  §  113;  post,  §  140. 

2  Whitwell,  Bond  &  Co.  v.  Warner,  20  Vt.  425  ;  s.  c.  2  Redf.  Am.  Railw.  Cases, 
340.  But  the  general  agent  of  such  a  company,  who  performs  the  daily  routine  of 
the  business  of  the  company,  cannot  bind  them  beyond  the  scope  of  his  ordinary 
duties.  Hence  the  law  agent  of  a  joint-stock  insurance  company  cannot  bind  the 
company  by  his  false  representations  as  to  the  state  of  its  finances.  Burnes  v. 
Penell,  2  H.  L.  Cas.,  Clark  &  F.  (N.  S.)  497.     But  where  the  directors  of  the 

[*556] 


58-4  RAILWAY    DIRECTORS.  PART  VI. 

♦the  same  transaction,  or  express  notice,  is,  in  general,  notice  to 
the  company.  But  the  fact  that  one  of  the  firm  is  a  director  in  a 
banking  company,  but  takes  no  active  part  in  the  business  of  the 
bank,  is  no  notice  to  such  bank  of  the  dissolution  of  such  part- 
nership, or  the  retiring  of  one  of  its  partners.3 

2.  But  it  is  said  the  directors  of  a  corporation  have  no  authority, 
without  a  vote  of  the  shareholders,  to  apply  to  the  legislature  for 
an  enlargement  of  the  corporate  powers.4  And  it  was  held,  that 
the  managing  directors  of  a  joint-stock  company,  who  had  power 
to  lease  the  works  of  a  company,  could  not,  in  the  lease,  give  an 
option  to  the  lessee,  to  purchase,  or  not,  at  a  price  fixed,  the  entire 
works  of  the  company,  at  any  time  within  twenty  years,  and  that 
such  a  contract  must  be  ratified  by  every  member  of  the  company 
to  become  binding  upon  them.5 

3.  And  where  the  deed  of  a  joint-stock  company  enables  the 
majority  to  bind  the  company,  by  a  resolution  passed  in  a  certain 

company  make  such  false  representations  as  to  the  state  of  the  finances  of  the  com- 
pany to  enhance  the  price  of  stocks,  they  are  liable  to  an  action  at  the  suit  of  the 
person  deceived,  or  to  criminal  prosecution  ;  and  transfers  of  stock,  made  upon  the 
faith  of  such  representations,  will  be  set  aside  in  equity.  lb.  Lord  Campbell 
said,  it  was  not  necessary  the  representation  should  have  been  made  personally 
to  the  plaintiff.  See,  also,  Soper  v.  Buffalo  &  Roch.  Railw.,  19  Barb.  310.  But 
where  the  charter  of  a  railway  company,  or  the  general  laws  of  the  state,  require 
the  ratification  of  a  particular  contract,  by  a  meeting  of  the  shareholders,  held  in 
a  prescribed  manner,  such  contract,  assumed  by  the  directors  only,  does  not  bind 
the  company,  and  a  court  of  equity  will  not  hesitate  to  enjoin  its  performance  by 
the  company  at  the  suit  of  any  dissenting  shareholder.  Zabrlskie  v.  C.  C.  &  C. 
Railw.,  10  Am.  Railw.  Times,  No.  15;  s.  c.  23  How.  (U.  S.)  381.  Where  a 
tariff  of  fares  of  freight  and  passengers  upon  a  railway  is  established  and  posted 
up  by  the  president  of  the  company,  and  is  acted  upon  in  transacting  the  busi- 
ness of  the  company  without  objection,  the  consent  of  the  corporation  will  be 
presumed.     Hilliard  v.  Goold,  34  N.  H.  230. 

3  Powles  v.  Page,  3  C.  B.  16.;  Dunham  v.  Troy  Union  Railw.,  40  N.  Y. 
(3  Keyes)  543.  But  the  secretary  of  a  railway  company  cannot  bind  the  com- 
pany by  admissions.  Bell  v.  London  &  N.  W.  Railw.,  15  Beav.  548.  Nor  can 
the  directors  bind  the  company  by  their  declarations,  unless  connected  with  their 
acts,  as  part  of  the  res  gestce.  Soper  v.  Buffalo  &  Roch.  Railw.,  19  Barb.  310. 
Notice  of  process  to  two  directors  of  a  canal  company  is  good  notice  to  the  com- 
pany, and  will  bind  it,  although  never  communicated  to  the  board.  Boyd  v. 
Chesapeake  &  Ohio  Canal  Co.,  17  Md.  195. 

4  Marlborough  Manufacturing  Co.  v.  Smith,  2  Conn.  579. 

''  Clay  v.  Rufford,  5  De  G.  &  S.  768 ;  s.  c.  19  Eng  L.  &  Eq.  350. 

[*557] 


§  135.  EXTENT  OF  THEIR  AUTHORITY.  585 

manner  these  formalities  must  be  strictly  complied  with,  or  the 
minority  will  not  be  bound  by  the  act.6 

*  4.  So,  too,  where  the  directors,  or  even  a  majority  of  the  share- 
holders, assume  to  enter  into  a  contract,  beyond  the  legitimate 
scope  of  the  objects  and  purpose  of  the  incorporation,  the  contract 
is  not  binding-  upon  the  company,  and  any  shareholder  may  restrain 
such  parties  by  injunction  out  of  Chancery,  from  applying  the 
funds  of  the  company  to  such  purpose,  however  beneficial  it  may 
promise  to  become  to  the  interests  of  the  company.  This  is  a 
subject  of  vast  concern  to  the  public,  considering  the  large  amount 
of  capital  invested  in  railways,  and  the  uncontrollable  disposition 
which  seems  almost  everywhere  to  exist,  in  the  utmost  good  faith, 
no  doubt,  to  improve  the  business  of  such  companies,  by  extending 
the  lines  of  communication,  and  even  by  the  virtual  purchase  of 
other  extensive  works  more  or  less  nearly  connected,  either  in 
fact  or  in  apprehension,  with  the  proper  business  of  the  com- 
pany. In  an  English  case  before  the  Master  of  the  Rolls,  it 
was  held,  that  where  a  railway  company  were  required  by  their 
charter  to  keep  up  a  ferry  accommodation  between  certain  points, 
and  for  that  purpose  were  obliged  to  have  a  much  larger  number 
of  steamboats  on  certain  days  than  upon  ordinary  occasions,  they 
were  not  acting  ultra  vires  in  employing  the  steamboats  for  excur- 
sions to  a  point  beyond  the  ferry  and  back,  when  not  required  for 
the  purposes  of  the  ferry.7  The  learned  judge  thus  defined  the 
powers  of  railway  companies.     After  saying  that  if  every  share- 

6  Ex  parte  Johnson,  31  Eng.  L.  &  Eq.  4S0.  One  railway  company  cannot, 
without  the  permission  of  parliament,  purchase  stock  in  other  railway  companies. 
Salomons  v.  Laing,  12  Beav.  339,  377 ;  s.  c.  6  Railw.  C.  289.  In  the  case  of 
Ernest  v.  Nichols,  6  Ho.  Lds.  401 ;  s.  c.  30  Law  Times,  45,  decided  in  the 
House  of  Lords,  in  August,  1857,  the  subject  of  the  power  of  the  directors  of  a 
joint-stock  company  to  bind  the  company,  is  discussed  very  much  at  length,  and 
the  conclusion  reached,  as  in  some  former  cases  (Ridley  v.  Plymouth,  &c.  Co., 
2  Exch.  711,  and  some  others),  that  the  directors  could  execute  no  binding  con- 
tract on  behalf  of  the  company,  except  in  strict  conformity  to  the  deed  of  settle- 
ment by  which  the  company  was  constituted  ;  and  that  it  was  no  excuse  for  the 
other  contracting  party  to  say  he  was  ignorant  of  the  provisions  of  that  deed. 
It  was  his  folly  to  contract  with  a  director  or  directors,  under  such  ignorance, 
and  he  must  be  content  to  look  to  those  with  whom  he  contracted. 

7  Forrest  v.  Manchester  S.  &  L.  Railw.,  30  Beav.  40;  7  Jur.  (N.  S.)  749; 
s.  c.  affirmed  in  Court  of  Chancery  Appeal,  id.  887,  but  upon  the  ground  that 
the  suit  was  illusory,  and  not  in  fact  the  suit  of  the  plaintiff,  but  of  a  rival  com- 
pany. 

[*558] 


586  IiULWAY    DIRECTORS.  PART  VI. 

holder  but  one  assented,  the  company  could  not  carry  on  a  trade 
perfectly  distinct  from  that  for  which  they  were  constituted;  "it 
is  impossible,"  said  the  Master  of  the  Rolls,  "  for  them  to  set  up 
a  brewery,  —  they  cannot  carry  on  a -trade  such  as  managing  a 
I  company."  — "  And  if  this  were  the  case  of  a  railway  com- 
pany embarking  in  the  formation  of  a  packet  company,  for  the 
•  purpose  of  carrying  passengers  between  two  places,  or  even  for 
the  mere  purpose  of  making  excursions,  I  should  be  of  opinion  it 
was  not  justified.  But  1  am  of  opinion,  that  no  capital  of  the  com- 
pany is  embarked  expressly  and  solely  for  the  purpose  of  making 
excursion  trips."  And  in  the  Supreme  Court  of  the  United  States8 
it  has  been  decided,  that  separate  railway  corporations  had  no 
right  to  consolidate  their  roads  into  one,  and  put  them  under  one 
management,  which  seems  to  us  a  very  questionable  proposition, 
to  say  the  least,  since  such  a  combination  of  management  is  ob- 
viously the  only  thing  which  will  be  adequate  to  produce  the  kind 
and  degree  of  concentration  of  effort  and  management  in  the  car- 
rying  forward  of  railway  enterprises  in  this  country,  which  will 
make  them  either  remunerative  or  useful  to  the  public.  And  as 
there  is  no  national  supervision  of  these  vast  interests,  we  must 
find  it  either  in  the  discretion  of  railway  directors  and  managers, 
or  in  some  new  constitutional  provisions  in  the  national  govern- 
ment, adequate  to  the  exigency.  But  the  proposition  that  such 
companies  cannot  establish  a  steamboat  line  in  connection  with 
their  business,  and  that  their  joint  notes  given  for  the  purchase  of 
boats  cannot  be  enforced,  is  unquestionable.8 

5.  There  can  be  no  doubt  the  courts  of  equity  hold  some  rightful 
control  over  these  speculative  schemes  and  enterprises.  But  they 
lie  so  deeply  entrenched  in  the  general  spirit  of  the  age,  and  re- 
ceive so  much  countenance  and  sympathy  from  kindred  enterprises, 
in  almost  all  the  departments  of  business,  that  it  often  becomes 
extremely  difficult,  if  not  impossible,  to  fix  any  well-defined  and 
practicable  limits  to  the  operations  of  railway  companies,  that  shall 
not  allow  them,  on  the  one  hand,  the  power  of  indefinite  extension, 
and  overwhelming  absorption  of  kindred  enterprises,  or  which  will 
not  be  regarded,  on  the  other,  as  a  denial  of  fair  liberty  and  free 
scope  to  carry  out  the  just  objects  of  their  creation.  We  have 
thought  that  we  could  not  afford  a  more  just  and  unexceptionable 

s  Pearce  v.  M.  &  t.  &  P.  &  I.  Raihv.,  21  How.  441.  But  see  Rut.  &  Bur. 
Pvailw.  v.  Proctor,  2'J  Vt.  93,  95. 

[*5."!>] 


§  135.  EXTENT  OP  THEIR  AUTHORITY.  587 

commentary  upon  this  difficult  and  important. subject,  than  in  the 
language  of  one  of  the  most  sober,  discreet,  and  learned  of  the 
English  equity  judges,  Lord  Langdale,  M.  R.9 

9  Colman  v.  The  Eastern  Counties  Railw.  Co.,  10  Beav.  1 ;  s.  c.  4  Railw.  C. 
513.  The  managing  directors  of  a  railway  company,  with  the  view  of  increasing 
the  traffic  on  their  line,  entered  into  a  contract  with  a  steam-packet  company, 
that  they  would  guarantee  the  proprietors  of  the  steam-packet  company  a  mini- 
mum dividend  of  £.">  per  cent  on  their  paid-up  capital  until  the  company  should 
be  dissolved,  and  that,  upon  a  dissolution,  the  whole  paid-up  capital  should  be 
returned  to  the  shareholders  in  exchange  for  a  transfer  of  the  assets  and  proper- 
ties of  the  steam-packet  company.  One  of  the  shareholders  filed  a  bill  on  behalf 
of  himself  and  all  other  shareholders  who  should  contribute,  except  the  directors, 
against  the  company  and  the  directors,  and  obtained  an  injunction,  ex  parte,  to 
restrain  the  completion  of  the  contract:  Held,  on  motion  to  dissolve  the  injunc- 
tion, that  an  objection  for  want  of  parties  to  a  suit  so  framed  was  not  sustainable  : 
That  directors  have  no  right  to  enter  into  or  to  pledge  the  funds  of  the  company 
in  support  of  any  project  not  pointed  out  by  their  act,  although  such  project  may 
tend  to  increase  the  traffic  upon  the  railway,  and  may  be  assented  to  by  the 
majority  of  the  shareholders,  and  the  object  of  such  project  may  not  be  against 
public  policy :  That  acquiescence  by  shareholders  in  a  project  for  however 
long  a  period,  affords  no  presumption  that  such  project  is  legal :  That  an  objec- 
tion stated  by  affidavit  and  remaining  unanswered,  that  the  plaintiff  was  proceed- 
ing at  the  instigation  and  request  of  a  rival  company,  did  not  deprive  him  of  his 
right  to  an  injunction,  and  the  motion  to  dissolve  the  injunction  was  refused,  with 
costs:  The  learned  judge  said:  "To  look  upon  a  railway  company  in  the  light 
of  a  common  partnership,  and  as  subject  to  no  greater  vigilance  than  common 
partnerships  may  be,  would,  I  think,  be  greatly  to  mistake  the  functions  which 
they  perform,  and  the  powers  of  interference  which  they  exercise  with  the  public 
and  private  rights  of  all  individuals  in  this  realm.  We  are  to  look  upon  those 
powers  as  given  to  them  in  consideration  of  a  benefit,  which,  notwithstanding  all 
other  sacrifices,  is  on  the  whole  hoped  to  be  obtained  by  the  public ;  but  the 
public  interest  being  to  protect  the  private  rights  of  all  individuals,  and  to  save 
them  from  liabilities  beyond  those  which  the  powers  given  by  the  several  acts 
necessarily  occasion,  those  private  rights  must  always  be  carefully  looked  to.  I 
am  clearly  of  opinion,  that  the  powers  given  by  an  act  of  parliament  like  that 
which  is  now  in  question,  extend  no  further  than  expressly  stated  in  the  act, 
except  where  they  are  necessarily  and  properly  acquired  for  the  purposes  which 
the  act  has  sanctioned.  How  far  those  powers  may  extend  which  are  necessarily 
or  conveniently  to  be  exercised  for  the  purposes  intended  by  the  act,  will  very 
often  be  a  subject  of  great  difficulty.  We  cannot  always  ascertain  what  they 
are  ;  ample  powers  are  given  for  the  purpose  of  constructing  the  railway  ;  ample 
powers  are  given  for  the  purpose  of  maintaining  the  railway ;  ample  powers  are 
also  given  for  the  purpose  of  doing  all  those  things  which  are  required  for  the 
proper  use  of  the  railway  ;  but  I  apprehend  that  it  has  nowhere  been  stated  that 
railway  companies  have  power  to  enter  into  transactions  of  all  sorts  and  to  any 
extent.     Indeed  it  is  admitted,  and  very  properly  admitted,  that  they  have  not 

[*559] 


588  RAILWAY   DIRECTORS.  PART  VI. 

*  G.  In  an  English  case,10  it  was  declared  by  the  Court  of 
Chancery  that  the  directors  of  the  company  were  restricted,  as  to 

a  rijjit  to  enter  into  new  trades  and  new  businesses  not  pointed  out  by  the  act; 
but  it  is  contended  that  they  have  a  right  to  pledge  the  funds  of  the  company, 
without  any  limit,  for  the  encouragement  of  other  transactions,  however  various 
and  extensive,  provided  only  they  profess  that  the  object  of  the  liability  occa- 
sioned to  their  own  shareholders  by  such  encouragement  is  to  increase  the  traffic 
upon  the  railway,  and  thereby  the  profit  to  the  shareholders.  Surely  that  has 
nowhere  been  stated;  there  is  no  authority  for  any  thing  of  that  kind.  What 
has  been  stated  is,  that  these  things  to  a  small  extent  have  frequently  been  done 
since  the  establishment  of  railways.  Be  it  so ;  but  unless  what  has  been  done 
can  be  proved  to  be  in  conformity  with  the  powers  given  by  the  special  acts  of 
parliament,  they  do  not,  in  my  opinion,  furnish  any  authority  whatever.  To 
suppose  that  the  acquiescence  of  railway  shareholders,  for  the  last  fifteen  years, 
in  any  transaction  conducted  by  a  railway  company,  is  any  evidence  whatever  of 
their  having  a  lawful  right  to  enter  into  it,  is,  I  think,  wholly  to  forget  the  frenzy 
in  which  the  country  has  been  for  the  last  fifteen  or  sixteen  years,  or  thereabout. 
There  is  no  project,  however  wild,  which  has  not  been  encouraged  by  some  one 
or  more  of  these  companies.  There  is  no  project,  however  wild,  which  the  share- 
holders, or  the  persons  liable  in  respect  of  those  companies,  have  not  acquiesced 
in,  from  one  cause  or  another,  either  from  cupidity  and  the  hope  of  gaining  ex- 
traordinary profits  beyond  their  first  anticipations,  or  from  terror  of  entering  into 
a  contest  with  persons  so  powerful.  In  the  absence  of  legal  decisions,  I  look 
upon  the  acquiescence  of  shareholders  in  these  transactions  as  affording  no  ground 
whatever  for  the  presumption  that  they  may  be  in  themselves  legal."  The  case 
was  afterwards  mentioned  to  the  court,  on  behalf  of  the  defendants,  when  his 
lordship  stated,  that  the  injunction  was  only  meant  to  refer  to  the  guaranty  pro- 
posed to  be  given,  and  the  case  made  by  the  bill ;  but  was  not  intended  to  affect 
any  arrangement  which  the  directors  might  enter  into  with  any  steam-packet 
company  respecting  the  rates  and  tolls  to  be  charged  on  the  railway. 

In  Salomons  v.  Laing,  the  same  learned  judge  said  (12  Beav.  339,  377 ;  s.  c. 
6  Railw.  C.  301)  :  "  A  railway  company,  incorporated  by  act  of  parliament,  is 
bound  to  apply  all  the  moneys  and  property  of  the  company  for  the  purposes 
directed  and  provided  for  by  the  act  of  parliament,  and  not  for  any  other  purpose 
whatever.  When  the  expenses  are  paid,  and  the  public  purposes  directed  and 
provided  for  by  the  act  of  parliament, — which,  in  truth,  was  the  motive  and 
inducement  for  granting  the  extraordinary  powers  given  by  all  these  acts  of 
parliament,  —  when  these  purposes  are  fully  performed,  any  surplus  which  may 
remain  after  setting  apart  the  sum  to  answer  contingencies,  may,  if  not  applied  in 


10  Stanhope's  case,  Law  Rep.  1  Ch.  App.  161 ;  s.  c.  12  Jur.  (N.  S.)  79,  re- 
versing the  decision  of  the  Master  of  the  Rolls  in  s.  c.  11  Jur.  (N.  S.)  872; 
Lord  Belhaven'a  case,  3  De  G.,  J.  &  S.  41;  s.  c.  11  Jur.  (N.  S.)  572,  is  here 
denied,  and  Spackman's  case,  id.  207,  approved.  See  also  Houldsworth  v.  Evans, 
L.  R.  3  Ho.  Lds.  263 ;  ante,  §  42,  pi.  4,  and  n. ;  Spackman's  case  affirmed  in 
the  House  of  Lords,  L.  R.  3  Ho.  Lds.  171 ;  post,  in  note  13. 
[*5G0] 


§  135.  EXTENT   OF   THEIR    AUTHORITY.  589 

*  the  extent  of  their  authority  to  bind  the  members,  by  the  terms 
of  the  deed  of  settlement  or  charter,  or  fundamental  constitution 

enlarging,  improving,  or  repairing  the  works,  be  divided  among  the  shareholders. 
The  dividends,  which  belong  to  the  shareholders,  and  are  divisible  among  them, 
may  be  applied  by  them  severally  as  their  own  property,  but  the  company  itself, 
or  the  directors,  or  any  number  of  the  shareholders  assembled  at  a  meeting  or  oth- 
erwise, have  no  right  to  dispose  of  the  shares  of  the  general  dividend,  which  belong 
to  the  particular  shareholder,  in  any  manner  contrary  to  the  will  or  without  the 
consent  or  authority  of  that  particular  shareholder.  Any  application  of  or  deal- 
ing with  the  capital,  or  any  part  of  the  capital,  or  any  funds  or  money  of  the 
company,  which  may  come  under  the  control  or  management  of  the  directors  or 
governing  body  of  the  company,  in  any  manner  not  distinctly  authorized  by  the 
act  of  parliament,  is  in  my  opinion  an  illegal  application  or  dealing;  and  without 
meaning  to  say  that  it  is  or  could  be  practicable  for  individual  shareholders  to 
interfere  on  every  occasion,  however  small,  of  alleged  misapplication  of  particu- 
lar sums,  I  am  of  opinion  that  if,  as  in  this  case,  the  directors  are  proceeding  upon 
an  illegal  principle,  and  for  purposes  not  authorized  by  the  act  of  parliament,  to 
involve  the  company,  or  the  shareholders  of  the  company,  or  any  of  them,  in 
liabilities  to  which  the  shareholders,  or  any  of  the  shareholders,  never  consented, 
relief  may  and  ought  to  be  given  in  this  court ;  and  that  the  mere  circumstance 
of  the  Brighton  company  having  obtained,  as  it  is  not  disputed  they  did  lawfully 
obtain,  a  certain  number  of  shares  in  the  Portsmouth  company,  is  not  a  reason 
why  the  company  should  be  enabled  or  permitted  to  purchase  more  shares,  and 
thereby  increase  the  risks  to  which  parliament  permitted  the  shareholders  to  be 
exposed  by  the  shares  which  may  have  become  vested  in  them  by  the  Amalga- 
mation Act,  or  any  reason  why  the  directors  should  be  permitted  to  divert  so 
much  of  the  funds  of  the  company  as  they  think  proper,  or  indeed  any  portion 
of  those  funds,  for  the  support  of  another  company  having  distinct  objects,  and 
meant  to  be  applied  to  purposes  different  from  those  in  consideration  of  which 
alone  those  powers  were  granted  to  them."  Ante,  §  56.  Where  the  statute 
prohibits  the  directors  of  a  company  from  being  concerned,  directly  or  indirectly, 
in  building  its  road,  a  contract  between  the  company  and  two  of  its  directors,  for 
that  purpose,  is  absolutely  void.  Barton  v.  Port  Jackson,  &c.  Plank-Road  Co., 
17  Barb.  397. 

The  deed  of  a  joint-stock  banking  company  contained  provisions,  that  the 
directors  should  be  not  fewer  than  five  or  more  than  seven  ;  that  three,  or  more, 
should  constitute  a  board,  and  be  competent  to  transact  all  ordinary  business, 
and  that  the  directors  should  have  power  to  compromise  debts.  Agents  might 
be  appointed  by  the  directors  to  accept  or  draw  bills,  without  reference  to  the 
directors.  The  number  of  directors  became  reduced  to  four,  and  three  executed 
a  deed,  compromising  a  large  debt  due  the  company,  taking  from  the  debtor  a 
mining  concern,  and  covenanting  to  indemnify  him  against  certain  bdls  of  ex- 
change. In  an  action  on  this  covenant,  held  that  it  did  not  bind  the  company, 
not  being  ordinary  business,  and  no  number  of  directors  less  than  five  being 
competent  to  transact  it.  And  query,  whether  a  board  of  three  directors  could 
transact  even  ordinary  business,  unless  when  the  board  consisted  of  five  only. 
Kirk  v.  Bell,  16  Q.  B.  290 ;  s.  c.  12  Eng.  L.  &  Eq.  obo.     But  where  a  series  of 

[*561] 


590  RAILWAY    DIRECTORS.  PART  VI. 

*of  the  company;  and  that  any  arrangement  ultra  vires  of  the 
directors,  by  which,  in  consideration  of  a  money  payment  by  a 
•  shareholder  desiring  to  retire,  they  declared  his  shares  forfeited, 
is  not,  nor  can  any  lapse  of  time  render  it,  binding  on  the  general 
body  of  the  shareholders,  unless  it  is  shown,  not  only  that  the 
latter  might  have  been,  but  also  that  they  actually  were,  fully  aware 
of  the  transaction.  This  seems  to  us  to  be  placing  the  question  of 
ratification  of  an  act  ultra  vires  upon  its  only  safe  and  salutary 
basis.  There  should  always  be  either  express  or  presumptive 
evidence  of  actual  and  unconstrained  acquiescence  entirely  satis- 
factory to  the  court,  in  order  to  bind  a  principal  by  any  act  of  his 
agent,  beyond  the  proper  limits  of  the  authority  delegated  to  him. 
This  is  a  principle  of  universal  acceptance  and  application  in  the 
law  of  agency. 

7.  One  of  the  recent  English  cases11  declares,  that  the  power  of 
the  directors  to  give  a  bill  of  sale,  as  security  for  debts,  is  incident 
to  all  trading  corporations,  although  it  be  not  expressly  conferred 
by  the  articles  of  association,  or  the  constitution  of  the  company. 

contracts  have  been  openly  made  by  the  officers  of  a  corporation,  within  the 
knowledge  of  the  corporators,  who  have  acquiesced  in  and  derived  benefit  from 
them,  the  contracts  are  binding  upon  the  corporation,  although  not  clearly 
authorized  by  its  charter.  And  if  it  be  a  municipal  corporation  it  is  bound  to 
pay  whatever  is  due,  by  taxes,  if  it  has  no  other  means.  Alleghany  City  v.  Mc- 
Clurkan,  14  Penn.  St.  81.  See  also  Houldsworth  v.  Evans,  L;  R.  3  Ho.  Lds. 
203,  Lord  Cranworth;  also  Evans  v.  Smallcombe,  id.  249;  Spackman  v.  Evans, 
id.  171.  So  also  where,  by  consent  of  the  board  of  directors,  a  general  agent 
was  employed  in  making  contracts  for  the  purchase  of  the  right  of  way,  and  was 
in  the  habit  of  agreeing  upon  the  price,  by  submission  to  arbitrators,  and  the 
awards  had  been  paid  in  such  cases  by  the  company's  financial  officers,  under  a 
general  resolution  to  pay  the  amount  these  agents  directed,  it  was  held  that  such 
agent,  aud  another  agent  employed  to  assist  in  the  same  service,  had  power  to 
submit  the  question  of  price,  in  such  cases,  to  arbitrators,  and  their  award  was 
binding  upon  the  company.  And  it  is  not  requisite  that  the  contract  of  submis- 
sion should  be  under  the  seal  of  the  company  in  such  case,  nor  will  it  be  avoided 
by  the  agent  attaching  a  seal  to  its  execution,  by  himself.  Wood  v.  The  Auburn 
&  Koch.  Railw.,  4  Seld.  160.  But  the  facts  that  the  directors  have  executed 
some  ten  or  twelve  similar  contracts,  and  that  such  contracts  had  been  published 
in  the  annual  reports,  and  distributed  to  the  stockholders  without  objection, 
although  evidence  of  acquiescence  on  their  part  is  not  evidence  of  the  enlarge- 
ment of  the  charter  powers  of  the  company,  so  as  to  bind  the  company,  as 
between  them  and  the  primary  parties  entering  into  the  contract  with  them. 
Mr  I.,, in,  J.,  in  Zabriskie  v.  C.  C.  &  C.  Railw.,  10  Am.  Railway  Times,  No.  15; 
s.  c.  -1-6  How.  (U.  S.)  381  ;  1  Redf.  Am.  Railw.  Cases,  61;  ante,  §  56. 
"  Shears  v.  Jacobs,  Law  Rep.  1  C.  P.  513;  s.  c.  12  Jur.  (N.  S.)  785. 

[*562,  563] 


§  135.  EXTENT    OP   THEIR    AUTHORITY.  591 

Mr.  Ch.  Justice  Erie  said,  "  The  fact  that  the  company  carries  on  a 
trade  is  a  sufficient  answer  to  the  first  objection.  Every  trading- 
company  must  have  the  power  of  giving  security  for  the  debts 
which  it  contracts." 

*  8.  Where  power  is  given  in  the  charter  of  a  corporation  or  in 
the  deed  of  settlement,  for  the  directors  to  confirm  any  contract 
made  by  provisional  directors,  or  any  persons  acting  as  directors  of 
the  company  in  its  formation,  the  directors  alone  have  power  to 
confirm  such  contracts  by  deed.12  But  the  directors  have  no 
power  to  make  any  contract  under  seal  binding  upon  the  corpora- 
tion, if  the  formalities  prescribed  by  its  constitution  have  not  been 
complied  with.13 

9.  The  directors  being  but  the  servants  or  trustees  of  the  com- 
pany, it  cannot,  as  before  stated,  retain  money  obtained  from  one 
by  the  fraudulent  sale  by  the  directors  of  the  company  property, 
unless  the  purchaser  has  by  his  own  misconduct  precluded  himself 
from  redress.14  It  was  here  held,  that  directors  are  not  justified 
in  using  reports  to  induce  a  sale  of  property,  which  were  true  at 
the  time  they  were  made,  if  not  true  at  the  time  they  are  so  used. 

10.  But  the  last  case  was  reversed  in  the  House  of  Lords,  and 
the  decree  of  Vice-Chancellor  Stuart 15  affirmed  with  costs,  —  his 
honor  not  having  awarded  costs,  —  on  the  same  grounds  mainly 
which  the  Vice-Chancellor  had  assumed :  that  as  no  specific  rep- 
resentations had  been  made  by  the  company,  and  no  specific  in- 
quiry by  the  plaintiff,  his  case  failed  on  that  point ;  and  inasmuch 
as  he  completed  the  purchase  after  being  informed  of  the  facts  as 
to  defect  of  title,  he  could  not  complain  of  any  previous  misrep- 
resentation.16 

11.  But  it  was  declared  in  the  House  of  Lords,16  that  if  reports 

"  Wilkins  v.  Roebuck,  4  Drew.  281. 

13  Hambro  v.  Hull  &  London  Fire  Ins.  Co.,  3  H.  &  N.  789.  See,  also,  East- 
wood v.  Bain,  id.  738;  Bryon  v.  Met.  Saloon  Omnibus  Co.,  3  De  G.  &  J.  123  ; 
Baker  ex  parte,  4  Drew.  &  Sm.  55;  s.  c.  6  Jur.  (N.  S.)  240. 

14  Conybeare  v.  New  B.  &  Canada  Railw.  Co.,  1  De  G.,  F.  &  J.  578 ;  s.  c.  6 
Jur.£(N.  S.)  .".18 ;  ante,  §  41,  pi.  2.    -Re  Cork  &  Youghall  Railw.,  17  W.  R.  873. 

13  (5  Jur.  (N.  S.)  164. 

16  9  Ho.  Lds.  711 ;  s.  c.  8  Jur.  (N.  S.)  575.  See  here  Lord  Chelmsford's  strict- 
ures upon  the  loose  mode  of  stating  fraud.  See  Royal  British  Bank  in  re  Mixer's 
case,  4  De  G.  &  J.  575.  Sec,  also,  Cullen  v.  Thompson,  4  Mcqu.  424,  in  the 
House  of  Lords,  where  all  the  officers  of  a  company  participating  in  a  fraudu- 
lent representation  are  held  liable,  although  but  part  signed  the  report.  9  Jur. 
(N.  S.)  85. 

[*564] 


592  RAILWAY    DIRECTORS.  PART  VI. 

are  made  to  the  stockholders  of  a  company  by  their  directors,  and 
adopted  by  them  at  one  of  their  appointed  meetings,  and  after- 
wards circulated  in  their  published  reports,  they  are  binding  upon 
the  company.  And  if  erroneous  statements  in  such  reports  can 
be  clearly  shown  to  have  been  the  proximate  and  immediate  cause 
*of  shares  having  been  bought  from  the  company  by  any  individ- 
uals, a  court  of  equity  will  not  permit  the  company  to  retain  the 
benefit  of  the  contract. 

1±  But  when  a  company  issues  a  prospectus,  a  person  contract- 
Lng  to  take  shares  on  the  faith  of  it,  has  the  right  to  claim,  not 
only  that  he  shall  not  be  misled  by  any  statements  actually  false, 
but  that  he  shall  be  correctly  informed  by  it  of  all  the  facts,  the 
knowledge  of  which  might  reasonably  have  deterred  him  from  en- 
tering into  the  contract.17  But  the  false  representation  of  an 
officer  is  not  that  of  the  company,  even  if  made  at  the  office.18 
But  to  become  the  act  of  the  company  it  must  be  contained  in  a 
report  of  the  company  adopted  at  a  regular  meeting.18 

13.  The  directors  of  a  railway  company  are  not  justified  in  act- 
ing on  an  old  resolution  authorizing  the  issue  of  shares,  after  the 
purpose  for  which  the  issue  was  authorized  has  ceased  to  be  availa- 
ble ; 19  nor  in  issuing  shares,  supposing  them  to  possess  the  power, 
for  the  express  purpose  of  procuring  votes  to  influence  a  coming 
general  meeting.19  An  injunction  will  be  issued  to  restrain  such 
action  of  the  directors,  it  not  being  a  question  of  the  internal 
management  of  the  company,  but  an  attempt  to  prevent  such 
management  being  legitimately  carried  on. 

14.  In  a  trial20  before  3fartin,  B.,  where  it  appeared  that  the 
profits  of  the  company  had  been  studiously  misrepresented  by 
the  manner  of  keeping  the  books,  and  a  large  apparent  profit  on  the 
year  preceding  the  report  presented,  by  not  bringing  all  the  cost 
of  material  forward  into  the  account  of  the  year  in  which  it  was 

7  X.  I'..  &  C.  Railw.  &  Land  Co.  v.  Muggeridge,  1  Drew.  &  Sm.  363;  s.  c.  7 
Jur.  (X.  S.)  132. 

|M  Royal  British  Bank  in  re,  3  L.  T.  (N.  S.)  843. 

,n  Fraser  v.  Whalley,  2  II.  &  M.  10. 

w  Bale  r.  Clelland,  1  F.  &  F.  117;  Kisch  v.  Venezuela  Railw.  Co.,  3  De  G., 
J.  &  S.  L22  :  s.  c.  11  Jur.  (N.  S.)  646.  The  question  of  fraud  by  means  of  indue- 
in.-  a  shareholder  to  buy  his  shares  upon  a  misapprehension  of  the  true  condition 
of  the  company,  i-  one  of  fact,  to  be  judged  of  by  the  jury  upon  a  consideration 
of  all  the  facts,  and  is  mainly  one  of  intent.  Cleveland  Iron  Co.  v.  Stephenson, 
2  1     &  F.  428. 

[*665] 


§  135.  EXTENT   OF   THEIR    AUTHORITY.  593 

consumed,  it  was  held  that  any  error  in  the  mere  mode  of  keeping 
the  accounts  would  not  be  evidence  of  fraudulent  representation, 
but  the  falsification  of  facts  and  figures  was  so,  as  against  any  of 
the  officers  of  the  company  who  were  aware  of  the  issue  of  the 
prospectus,  and  had  aided  or  connived  at  the  mode  in  which  it  was 
made  up. 

*  15.  It  was  also  held  in  the  last  case,  that  as  the  statute  re- 
quired the  dividend  to  be  declared  by  the  directors,  though  with 
the  sanction  of  the  shareholders,  if  to  the  knowledge  of  the 
directors  and  officers  of  the  company  such  dividend  so  declared 
by  the  directors  was  paid  otherwise  than  out  of  profits,  they  are 
responsible  for  it,  and  for  the  circulation  of  any  declaration  of  it, 
acted  upon  by  innocent  shareholders. 

16.  Directors  may  ratify  any  contract  made  on  their  behalf 
which  they  have  power  to  make  themselves.21  And  where  the 
constitution  of  the  corporation  gives  to  the  directors,  with  the 
sanction  of  an  extraordinary  meeting  of  the  shareholders,  by  a 
majority  of  two-thirds,  power  to  do  any  act  which  might  be  done 
with  the  consent  of  all  the  shareholders,  the  directors  may  lease 
the  entire  business  of  the  company  in  that  mode.22 

17.  The  board  of  directors  of  a  railway  company  are  to  be  re- 
garded as  its  immediate  representatives,  and  occupy  the  relation  of 
master  to  the  different  classes  of  employes  engaged  in  operating 
the  road,  and  performing  the  work  or  transacting  the  business  of 
the  company  in  any  of  its  departments.23 

18.  Although  the  directors  of  a  railway  company  cannot  apply  the 
funds  to  any  purpose,  ultra  vires,  of  such  company,  yet  where  they 
have  done  so,  with  the  bona  fide  purpose  of  serving  the  public 
interest  and  convenience,  by  diverting  a  highway,  a  court  of  equity 
will  not  compel  the  company  to  restore  the  highway,  so  as  to  bring 
their  work  intra  vires,  if  the  result  will  be  to  cause  greater  incon- 
venience to  the  public,  or  those  of  the  public  making  the  com- 
plaint.24 

21  Wilson  v.  West  Hartlepool  Harbor  &  Railway  Co.,  34  Beav.  187;  s.  q.  2 
De  G.,  J.  &  S.  475;  11  Jur.  (N.  S.)  124. 

22  Featherstonhaugh  v.  Porcelain  Co.,  Law  Rep.  1  Eq.  318;  8.  c.  11  Jur. 
(N.  S.)  994. 

23  Columbus  &  Ind.  Central  Railw.  v.  Arnold,  31  Ind.  174. 

24  Attorney  General  v.  E.  H.  &  S.  Railw.,  L.  R.  6  Eq.  106.  The  informa- 
tion Avas  dismissed  without  costs,  and  Avithout  prejudice  to  any  proceeding  at 
law. 

vol.  i.  38  [*5(i6J 


594 


RAILWAY    DIRECTORS. 


PART  VI. 


19,  Neither  the  president  or  any,  or  all,  of  the  directors  of  the 
company  have  any  inherent  power  to  hind  the  company.  Their 
powers  depend  upon  the  general  rules  of  the  law  of  agency. 
Where,  therefore,  the  president  of  a  corporation  executed  a  con- 
tract on  their  behalf,  without  previous  authority,  and  the  company 
subsequently  accepted  the  benefits  of  such  contract,  having  knowl- 
edge of  the  means  by  which  they  were  obtained,  it  was  held  to 
operate  as  a  ratification  of  the  contract,  and  to  make  it  binding  upon 
the  corporation  from  the  first.25 


SECTION    II. 

When  Directors  become  Personally  Liable. 


1.  Not  liable  personally,  for  any  laivful  act 

done  as  directors. 

2.  But  an  liable  upon  express  undertaking  to 

be  personally  holden. 

3.  Are  liable  personally,  if  they  assume  to  go 

beyond  their  powers. 


4.  Extent  of  poicers  affected  often  by  usage  ■ 

and  course  of  business. 

5.  But  if  contract  is  beyond  the  power  of  com- 

pany, or  not  in  usual  form,  directors 
personally  liable. 

6.  Statement  of  case  illustrating  last  point. 


§  136.  1.  The  English  statute  enacts,  what  was  the  common 
law  indeed,  that  no  director  should  become  personally  liable  by 
reason  of  any  contract  made,  or  any  act  done,  on  behalf  of  the 
company,  within  the  scope  of  the  authority  conferred  by  the 
statutes  of  the  legislature  and  the  company,  or,  as  it  is  expressed, 
"  by  reason  of  any  lawful  act  done  by  them."  Corporations  are 
not,  in  general,  responsible  for  the  unlawful  or  unauthorized  acts 
of  their  officers.1     But  the  corporation  may  be  held  responsible 


;'  Perry  v.  Simpson  YV.  P.  M.  Co.,  37  Conn.  520.  It  was  here  held  that  notice 
to  one  of  two  general  agents  of  a  corporation  was  notice  to  the  company  and  to 
the  other  agent.  The  declaration  of  such  general  agent  being  the  notice  of 
the  company  to  the  opposite  party,  that  the  president  is  authorized  to  contract 
on  behalf  of  the  corporation,  and  such  party  having  acted  upon  the  faith  of  such 
declaration  will  estop  the  company  from  denying  such  authority.  See  also  Whit- 
well  v.  Warner,  supra  n.  2. 

1  Mitchell  v.  Rockland,  41  Ale.  3G3.  Commissioners  to  accept  subscriptions 
for  a  corporation,  who  are  by  the  charter  required  to  give  notice  of  the  time  and 
place  of  opening  the  books,  may  give  such  notice  by  a  majority  of  their  number. 
Penobscot  Itailw.  t;.  White,  41  Me.  512. 

[*566] 


§  186.  WHEN    THEY    BECOME    PERSONALLY    RESPONSIBLE.  595 

*  for  the  publication  of  a  libel,  by  its  agents  and  servants  in  the 
due  course  of  the  business  of  the  company,  as  where  the  company 
were  the  owners,  and  by  their  agents  managed  the  electric  tele- 
graph along  their  line,  and  sent  a  despatch  to  the  effect  that  the 
plaintiff's  bank  "  had  stopped  payment,"  which  proved  not  to  be 
the  fact.  This  despatch  was  sent  for  their  own  protection,  in 
order  to  insure  their  agents  against  taking  bills  on  such  bank. 
But  the  message  went  beyond  what  was  necessary  for  that  pur- 
pose, and  thus  made  the  company  responsible  as  for  a  gratuitous 
publication.  It  would  have  answered  all  purposes  to  have  directed 
their  agents  not  to  take  the  bills,  without  assigning  any  reason.2  So, 
too,  in  Philadelphia,  Wilmington,  and  Baltimore  Railway  v.  Quigley,3 
it  was  decided,  that  a  railway  may  become  liable  for  a  libel  in 
publishing  and  circulating  among  its  members  a  statement  of  the 
report  of  the  directors,  and  the  evidence  on  which  it  is  based,  al- 
though the  report  itself,  when  made  to  the  stockholders  in  good 
faith,  and  for  their  information  upon  matters  affecting  their  inter- 
est, would  be  regarded  as  a  privileged  communication. 

2.  But  directors  have  been  held  liable,  in  many  cases,  person- 
ally, where  the  debt  was  that  of  the  company,  and  where  it  so 
appeared  upon  the  face  of  the  contract.  As  upon  a  promissory 
note,  which  was  expressed,  "jointly  and  severally  we  promise  to 
pay,"  "  value  received  for  and  on  behalf  of  the  Wesleyan  News- 
paper Association.  S.  &  W.,  Directors."4  But  it  is  ordinarily 
a  question  of  intention,  whether  the  directors  are  personally 
liable  if  they  act  within  the  powers  conferred  by  the  company.5 

2  Whitfield  v.  South  Eastern  Railw.,  1  Ellis,  B.  &  Ellis,  115;  s.  c.  4  Jur. 
(N.  S.)  688. 

3  21  How.  (U.  S.)  202 ;  s.  c.  2  Redf.  Am.  Railw.  Cas.  330. 

4  Healey  v.  Story,  3  Exch.  3.  Alderson,  B.,  said  the  terms,  jointly  and 
severally,  imported  a  personal  undertaking,  inasmuch  as  they  could  properly 
have  no  application  to  the  company.  But  see  Roberts  v.  Button,  14  Vt.  195, 
and  the  cases  cited,  where  the  subject  is  examined  more  at  length  than  space  will 
here  allow.  Dewers  v.  Pike,  Murphy  &  Hurl.  131.  But  in  the  case  of  Lindus 
v.  Melrose,  3  H.  &  N.  177,  before  the  Court  of  Exchequer  Chamber  (February, 
1858),  it  was  held  that  a  promissory  note  expressed,  "For  value  received  we 
jointly  promise  to  pay,"  and  signed  by  three  of  the  directors  of  a  joint-stock 
company,  and  countersigned  by  the  secretary,  and  expressed  to  have  been  on 
account  of  stock  of  the  company,  did  not  bind  the  signers  personally,  but  im- 
ported, on  its  face,  a  contract  on  behalf  of  the  company. 

5  Tyrrell  v.  Woolley,  1  Man.  &  Gr.  809 ;  Burrell  v.  Jones,  3  B.  &  Aid.  47. 
In  a  somewhat  recent  case,  Davidson  v.  Tulloch,  3  Macqu.  783 ;  s.  c.  6  Jur. 

[*567] 


596  RAILWAY    DIRFXTORS.  PART  VI. 

*  3.  Bui  where  the  directors  of  a  railway  assume  to  do  an  act 
exceeding  their  power,  as  accepting  bills  of  exchange,  which  does 
not  come  within  the  ordinary  business  ofrailways,  they  will  be 
personally  liable.6 

1.  1 J 1 1 1  the  business  of  railways  is  so  much  extended  in  this 
country,  as  borrowers  of  money,  carriers,  and  contractors,  in  vari- 
ous ways,  that  it  is  not  easy  to  determine,  except  from  each  par- 
ticular case,  how  far  the  directors  may  draw  or  indorse  bills,  or, 
indeed,  what  particular  acts  they  may  or  may  not  do.     In  one 

(N.  S.)  548,  before  the  House  of  Lords,  it  was  determined,  that  an  action  may  be 
maintained  against  the  directors  of  a  company  in  respect  of  any  transactions 
which  the  body  of  the  shareholders  could  not  sanction,  but  in  respect  of  any 
transactions  which  they  might  sanction,  although  the  directors  might  not  have 
been  justified  in  what  they  were  doing,  there  can  be  no  right  of  action.  And 
directors  arc  not  liable  for  defect  of  authority  to  make  a  conveyance  of  property, 
the  sale  of  which  they  had  negotiated,  but  the  actual  sale  being  broken  off  by  an 
objection  of  the  vendee's  solicitor,  that  the  directors  had  not  the  requisite 
authority.  Wilson  v.  Miers,  10  C.  B.  (N.  S.)  348.  See  also  Nowell  v.  Andover 
&  K.  Railw.  Co.,  8  Gif.  112;  s.  c.  7  Jur.  (N.  S.)  839.  The  company  are  not 
liable  to  make  good  any  loss  sustained  through  the  false  representations  of  their 
officers,  altlio  gh  incidentally  benefited  thereby,  unless  they  entered  into  the 
scheme  for  the  purpose  of  such  gain.     Barry  v  Croskey,  2  Johns.  &  H.  1. 

6  (  hven  v.  Van  Uster,  10  C.  B.  318  ;  Roberts  v.  Button,  14  Vt.  195.  They  are 
in  all  cases  responsible  for  the  consequences  of  omission  of  duty,  to  the  same  extent 
as  other  trustees.  Turquand  v.  Marshall,  Law  Rep.  6  Eq.  112  ;  s.  c.  Law  Rep.  4 
Ch.  Ap.  876,  and  is  referred  to  in  Overend,  Gurney  &  Co.  v.  Gibb,  L.  R.  5  Ho.  Lds. 
480,  where  the  case  is  reviewed  and  explained.  And  where  the  directors  certified 
that  they  had  appointed  an  agent  with  certain  powers,  and  it  proved  that  they  had 
no  such  power,  they  were  held  personally  responsible,  although  acting  in  good  faith. 
Bank  of  Australasian.  Cherry,  17  W.  R.  1031.  But  if  the  erroneous  misrepresenta- 
tion of  the  directors  concerns  matter  of  law  only,  and  involves  no  error  of  fact,  the 
directors  will  not  become  personally  responsible.  Beattie  v.  Lord  Ebury,  20  W. 
It.  99  1  ;  s.  c  Law  Rep.  7  Ch.  App.  777.  See  the  opinion  of  Mellish,  L.  J.  An 
agent  whose  conduct  is  merely  imprudent  will  not  make  himself  personally 
responsible  for  the  consequences,  unless  he  acted  rashly  or  recklessly,  so  as  to  be 
guilty  of  crassa  negligentia.  The  directors  of  a  company  formed  for  the  ex- 
press purpose  of  buying  the  business  of  another  company,  and  having  express 
powers  to  do  so,  in  making  the  purchase,  are  merely  agents,  and  not  trustees,  and 
will  not  be  held  responsible  unless  the  selling  company  was  known  to  be  in  des- 
perate  circumstances.  Overend,  Gurney,  &  Co.  v.  Gibb,  L.  R.  5  Ho.  Lds.  480. 
The  dissenting  stockholders  may  maintain  a  bill  in  equity  against  the  directors  of 
a  corporation  for  perpetrating  a  fraud  against  the  company,  by  the  control  of  the 
same  through  the  ownership  of  a  majority  of  the  stock,  and  it  is  not  indispensa- 
ble to  join  a  majority  of  the  directors  as  defendants.  Brewer  v.  Boston  Theatre, 
104  .Mass.  378. 

[*568] 


§  136.  WHEN   THEY   BECOME   PERSONALLY   RESPONSIBLE.  597 

case  the  question  of  the  extent  of  corporate  powers  is  considerably 
discussed,7  and  it  was  held  that  the  exercise  of  such  powers  must 
be  conferred  by  their  charters,  but  that  it  is  the  duty  of  courts  to 
give  the  charters  such  a  construction  as  to  effect  the  leading  pur- 
poses of  the  grant  where  that  can  be  done  consistently  with  the 
grant ;  and  that  business  corporations  have  the  power  to  make 
such  contracts  and  in  such  forms  as  are  requisite  to  accomplish 
the  purposes  of  the  grant,  having  regard  to  any  special  limitations 
contained  in  such  grants,  and  that  promissory  notes  or  bills  made 
or  received  by  such  corporations  are  prima  facie  valid,  but  that 
it  is  competent  to  show  that  the  transactions  out  of  which  they 
arise  are  not  within  the  powers  of  the  corporation  and  thus  defeat 
their  operation.  In  another  case8  it  *  was  held,  that  prima  facie 
a  railway  company  had  power  to  execute  promissory  notes  for  its 
legal  indebtedness,  and  that  it  could  do  this  only  by  its  agents  ; 
that  no  written  or  sealed  authority  to  the  agent  was  requisite ;  nor 
that  the  contract  should  be  under  seal  unless  specially  so  required 
by  the  charter ;  that  it  was  not  important  to  prove  the  considera- 
tion, as  the  law  will  make  the  same  implications  in  favor  of  the 
note  of  a  corporation  as  in  other  cases. 

5.  By  the  construction  of  the  English  statutes,  if  a  trustee  or 
director  of  any  public  work  made  a  contract  for  any  matter  not 
provided  for  in  the  special  acts  of  the  company  or  by  the  general 
statutes,  applicable  to  the  subject,  or  in  a  different  form  from  that 
so  provided,  he  is  taken  to  have  intended  to  become  personally 
responsible.9 

6.  Thus  where  a  check  on  the  company's  bankers,  for  payment 
to  a  third  party  of  the  company's  money,  was  drawn  by  three 
directors  in  the  name  of  the  company,  but  the  document  was 
signed  by  them  in  their  own  names,  and  countersigned  by  the 
secretary  of  the  company,  adding  to  his  name  "  Secretary,"  and 
a  stamp  bearing  the  name  of  the  company  was  affixed,  but  the 

7  Straus  v.  Eagle  Insurance  Co.,  5  Ohio  (N.  S.),  59. 

8  Hamilton  v.  Newcastle  &  Danville  Railvv.,  9  Ind.  359  ;  M.  &  M.  Railw.  v. 
Hodge,  id.  163.  In  Massachusetts  it  was  held  that  the  only  remedy  under  the 
late  statute  for  a  corporate  debt,  against  an  officer  of  the  corporation,  was  in 
equity.     Bond  v.  Morse,  9  Allen,  471. 

9  Parrott  v.  Eyre,  10  Bing.  283;  Wilson  v.  Goodman,  4  Hare,  54,  62  ;  Hig- 
gins  v.  Livingstone,  4  Dow,  P.  C.  341. 

[*569] 


598 


RAILWAY   DIRECTORS. 


PART  VI. 


three  directors  did  not  appear,  on  the  face  of  the  check,  to  be 
directors  or  to  sign  as  such,  it  was  held  that  it  did  not  purport  to 
h  i  the  check  of  the  company,  and  was  not  binding  on  them.10 


SECTION    III. 


Compensation  for  Service  of  Directors. 


!     /,.  'England,  directors  of  rail  way 9  are  enti- 
tled In  compensation  for  services. 

2.  But  tin  company  may  grant  an  annuity  to 

a  disabled  officer. 

3.  fn  this  country  are  entitled  to  compensation , 

in  conformity  to  the  order  of  the  board. 


4.  Some  American  cases  follow  the  English 

rule. 

5.  Official  bonds  strictly  limited  to  terms  for 

which  executed. 


§  187.  1.  In  England,  in  the  absence  of  contract  or  usage,  from 
which  one  might  be  inferred,  directors  of  railways  other  corpo- 

rations *  are  not  entitled  to  compensation  for  services  as  directors. 
This  is  regarded  as  an  office,  and  so  an  honorary  service.  And  a 
resolution  of  the  board  of  directors  that  compensation  should  be 
allowed  for  certain  specified  services,  not  being  under  seal,  so  as 
to  amount  to  a  bv-law,  will  not  entitle  such  director  to  sue  the 
company  for  compensation  for  such  service.1 

2.  But  it  would  seem,  where  the  company  voted  an  annuity 
to  a  disabled  officer,  in  the  nature  of  a  retiring  pension,  and  the 
directors,  by  deed,  in  the  name  of  the  company,  made  a  formal 
grant  in  conformity  with   the  vote,  that  the  contract  is  binding 


10  Serrell  v.  Derbyshire,  Staffordshire  &  Wor.  J.  Railw.,  19  Law  J.  371 ;  s.  c. 
9  C.  B.  811.  It  would  seem,  that  without  much  latitude  of  construction  this  case 
might  have  been  otherwise  ruled,  and  been  more  satisfactory. 

1  Dunstan  v.  The  Imp.  Gas  L.  Co.,  3  B.  &  Ad.  125.  But  see  Hall  v.  The 
Vt.  &  Mass.  II.,  28  Vt.  401.  The  rule  of  law  in  that  respect  is  different  in  this 
country,  a  resolution  of  the  board  of  directors  having  the  same  force,  whether 
under  seal  or  not.  Post,  §  143,  ante,  §  130.  See  also  Gaskell  v.  Chambers,  5 
Jur.  (X.  S.)  .",2:  s.  c.  26  Beav.  360.  In  this  case  the  directors  transferred  the 
business  of  the  company  to  another  company,  and  received  from  the  latter  a 
large  sum  for  compensation,  and  withheld  the  particulars  from  their  members. 
It  was  held  they  were  trustees  of  the  money  for  the  members,  and  the  directors 
were  ordered  to  pay  it  into  court.  But  the  directors  are  not  the  servants  of  the 
individual  .shareholders,  and  therefore  such  an  one  who  feels  aggrieved  must  seek 
redrew  through  the  company  for  any  misconduct  of  the  directors.  Orr  v.  Glas- 
gow, A.  &  M.  J.  R.  Co.,  3  Macqu.  Ho.  Lds.  799 ;  s.  c.  6  Jur.  (N.  S.)  877. 
[*570] 


§  137.  COMPENSATION    FOR    SERVICE    OF    DIRECTORS.  599 

upon  the  company,  although  no  power  is  expressly  given  by  their 
charter  to  grant  annuities.2 

3.  Railway  directors  in  this  country  are  generally  allowed 
compensation,  but  cannot  recover  it  beyond  the  rate  fixed  by  the 
general  resolutions  of  the  board.3  And  where  a  director  acts  as 
a  member  of  the  executive  committee  of  the  board,  or  in  selling 
the  bonds  of  the  company,  his  service  is  to  be  regarded  as  in  his 
capacity  of  director,  and  the  amount  of  compensation  is  limited  to 
that  allowed  directors.3 

*  4.  Some  of  the  American  states  adopt  the  English  rule  that  . 
railway  directors  cannot  recover  compensation  for  services  ren- 
dered in  obtaining  subscriptions  to  the  capital  stock  of  the  com- 
pany, before  its  organization  ;  or  for  any  other  services,  unless  they 
are  most  unquestionably  beyond  the  range  of  their  official  duties.4 
And  it  is  here  determined  that  it  would  make  no  difference  that 
the  services  were  rendered  under  an  expectation  and  an  under- 
standing among  those  engaged  in  the  enterprise  that  the  services 
should  be  compensated  by  the  company  after  its  organization.  And 
in  addition  to  the  technical  embarrassment  of  holding  the  company 
bound  by  any  such  arrangements  before  its  existence,  the  policy 
of  the  law  is  wholly  opposed  to  them.4  We  think  this  by  far  the 
most  salutary  rule  upon  the  subject. 

5.  It  is  scarcely  necessary  to  state  that  official  bonds  for  faith- 
ful administration  by  officers  of  corporations  are  to  be  limited 
strictly  to  the  term  for  which  such  officer  was  elected.  And  if  the 
office  is  annual,  and  the  officer  continued  from  year  to  year,  with- 
out the  renewal  of  the  bond,  and  the  officer's  annual  account  is 

2  Clarke  v.  Imp.  G.  L.  Co.,  4  B.  &  Ad.  315. 

3  Hodges  v.  Rut.  &  Burlington  Railw.,  29  Vt.  220.  But  where  a  director  per- 
forms services  for  the  company,  disconnected  with  his  office,  he  is  not  restricted, 
in  regard  to  the  compensation  by  any  resolution  of  the  board  in  regard  to  the  com- 
pensation to  be  made  the  directors.  Henry  v.  Rut.  &  Bur.  Railw.,  27  Vt.  485. 
In  another  case  it  was  held,  that  railway  directors,  as  a  general  rule,  are  not 
entitled  to  compensation  for  their  personal  services,  unless  rendered  under  some 
express  contract.  Hall  v.  Vermont  &  Mass.  Railw.,  28  Vt.  401.  But  an  allow- 
ance to  a  director  for  extra  services  made  by  a  board  of  which  the  claimant  was 
one,  and  his  presence  indispensable  to  constitute  a  quorum,  is  void,  and  any 
stockholder  may,  on  behalf  of  himself  and  others,  enjoin  the  treasurer  from  pay- 
ment.    Butts  v.  Wood,  37  N.  Y.  317. 

4  N.  Y.  &  N.  H.  Railw.  Co.  v.  Ketchum,  27  Conn.  170;  post,  §  140. 

[*571] 


600 


RAILWAY    DIRECTORS. 


PART  VI- 


passed  from  year  to  year,  until  finally  a  defect  occur  at  a  remote 
period  from  that  covered  by  the  bond,  there  is  no  indemnity  to  be 
obtained  under  the  bond.5 


SECTION     IV. 


Records  of  the  Proceedings  of  Directors. 


1.  English  statutes  require  minutes  of  pro- 
ceedings of  directors  and  make  it  evi- 
dence. 


2.  Presttmptions  in  favor  of  their  containing 

all  that  passed. 

3.  Company  mil  ratify  unauthorized  act  of 

directors  by  acquiescence. 


§  138.  1.  The  English  general  statutes  require  the  directors  to 
keep  minutes  of  all  appointments,  contracts,  orders,  and  proceed- 
ings of  the  directors  and  committees,  in  books  kept  for  that  pur- 
pose, and  these,  duly  made,  are  receivable  as  evidence,  without 
further  authentication.  But  this  is  held  not  to  exclude  other  evi- 
dence of  such  transactions.1 

*  2.  As  against  the  company  and  the  members  present  at  a  par- 
ticular meeting,  the  minutes  of  the  directors  will  be  held  prima 
facie  correct.2  And  where  the  proceedings  of  the  minutes  of  the 
meeting  are  imperfect,  it  will  be  presumed  that  every  thing  was 
brought  before  the  meeting  which  it  was  requisite  to  bring  before 
them  to  have  the  action  of  the  company  valid.3 

3.  The  legality  of  the  proceedings  of  directors  in  purchasing 
shares  of  the  company  for  the  company,  which  required  the  sanc- 
tion of  a  general  meeting,  will  be  presumed  either  from  lapse  of 
time  and  no  dissent  on  the  part  of  the  shareholders,  or  from  the 
proceedings  of  the  general  meeting  at  which  the  matter  would 
naturally  have  been  acted  upon  not  being  forthcoming,  as  it  was 

6  M.  &  M.  Savings  Co.  v.  O.  F.  Hall  Ass.,  48  Penn.  St.  446. 

1  [nglia  v.  The  Great  Northern  Railw.,  1  Macqu.  Ho.  Lds.  112  ;  s.  c.  16  Eng. 
L.  &  Eq.  55.  Lord  St.  Leonards  said,  in  the  House  of  Lords:  "But  inde- 
pendently of  the  evidence  furnished  by  the  books,  the  due  appointment  was 
proved  by  a  witness,  and  his  evidence  was  admissible  evidence",  for  the  act  con- 
fers :i  pi  i  vilege,  but  does  not  exclude  other  evidence  of  the  fact."  Miles  v.  Bough, 
3Q.  B.  845. 

1  Ex  parte  Stark,  10  Jur.  (X.  S.)  790. 

3  Ex  parte  Lane,  1  De  G.,  J.  &  Sm.  504;  s.  c.  10  Jur.  (N.  S.)  25. 

[*572] 


§139. 


AUTHORITY  TO  BORROW  MONEY,  ETC. 


601 


the  duty  of  the  company  to  keep  regular  minutes  of  such  meet- 
ing.3 And  it  was  also  here  held  that  the  company,  by  transfer- 
ring such  shares,  thereby  confirmed  the  validity  of  the  transfer  to 
them.3     So  also  by  paying  an  annuity,  the  price  of  such  shares.3 


SECTION    V. 

Authority  of  Directors  to  borrow  Money,  and  buy  Goods. 


1.  Authority  of  directors  to   bind  company, 

express  or  implied. 

2.  General  agent  will  bind  company  luithin 

scope  of  his  duties.    Directors  presumed 
to  assent  to  his  contracts. 

3.  Contracts  tinder  seal  of  company  prima 

facie  bind  them. 

4.  Strangers  must  take  notice  of  general  want 


of  authority  in  directors,  but  not  of  mere 
informalities. 

5.  Cannot  subscribe  for  stock  of  other  com- 

panies. 

6.  May  borrow  money  if  requisite. 

7.  How  far  directors  may  bind  company  by 

accepting  land  in  payment  of  subscrip- 
tion. 


§  139.  1.  Joint-stock  companies,  under  many  of  the  English 
statutes,1  are  held  bound  by  contracts  made  by  a  competent 
board  of  directors,  though  not  under  seal,  and  not  made  in 
strict  compliance  with  the  acts.2  But  those  who  seek  to  bind 
*  such  companies,  on  contracts  made  with  the  directors,  must 
show  their  authority  to  bind  the  company,  either  by  the  terms 
of  the  deed  of  settlement,  or  that  the  body  of  the  shareholders 
authorized  these  persons  to  act  on  their  behalf.  A  ratification  by 
a  competent  board  of  directors  will  bind  the  company.2 

2.  The  general  rule  upon  this  subject,  in  regard  to  goods  and 
money  which  is  obtained  by  agents,  ostensibly  clothed  with  com- 
petent authority,  and  which  actually  goes  to  the  use  of  the  com- 
pany, seems  to  be  that  the  company  is  holden.  Thus  where  a 
joint-stock  manufacturing  company,  having  a  board  of  directors, 

1  7  &  8  Vict.  c.  110. 

2  Ridley  v.  Plymouth  Banking  Co.,  2  Exch.  711.  Where  one  has  the  actual 
charge  and  management  of  the  business  of  a  corporation,  with  the  knowledge  of 
the  directors,  the  company  will  be  bound  by  his  contracts,  made  on  their  behalf, 
within  the  apparent  scope  of  the  business  thus  intrusted  to  him.  Goodwin  v. 
Union  Screw  Co.,  34  N.  H.  378 ;  Chicago,  Burlington,  &  Quincy  Railw.  v. 
Coleman,  18  111.  297.  In  this  case  it  is  held,  the  admission  of  the  president 
of  the  company  in  regard  to  the  authority  and  acts  of  a  sub-agent  will  bind  the 
company. 

[*573] 


602  RAILWAY    DIRECTORS.  PART  VI. 

with  authority  to  appoint  officers  and  delegate  their  authority, 
purchased  goods  through  the  general  manager  of  the  company, 
or  his  deputy,  or  the  secretary,  all  of  whom  were  duly  appointed, 
and  when  the  goods  were  delivered  on  the  company's  premises, 
and  used  for  their  purposes,  they  were  held  liable,  on  the  ground 
that  the  manager  had  authority  to  give  such  orders,  in  the  absence 
of  any  express  provision  to  the  contrary.  And  it  was  held  that, 
as  to  the  other,  the  directors  must  be  taken  to  have  known  that 
the  goods  had  been  furnished  and  used,  and  that,  therefore,  the 
company  was  liable  to  pay  for  them.3 

8.  -V  contract  under  the  seal  of  the  company  is  prima  facie 
binding  upon  them.  In  such  .case  it  is  not  enough,  in  order 
to  defeat  a  recovery  upon  the  contract,  to  show  an  excess  of 
authority  on  the  part  of  the  directors,  who  made  the  contract.4 

3  Smith  v.  Hull  Glass  Co.,  11  C.  B.  897.  And  where  the  general  agent  of  a 
manufacturing  company  directed  the  clerk  to  issue  a  promissory  note  in  the  name 
of  the  company,  and  it  was  shown  that  the  note  was  in  the  form  customarily  used 
by  the  company,  in  other  similar  cases,  and  which  they  had  always  recognized, 
it  was  held  to  be  sufficient  proof  of  the  execution  of  the  note  by  the  company  to 
go  to  the  jury,  and  to  warrant  them  in  finding  that  the  company  had  adopted,  by 
usage,  the  signature  of  their  agent  as  their  own,  and  intended  to  be  bound  by 
it.  Mead  t>.  Keeler,  24  Barb.  20.  Such  company  may  borrow  money  for  its 
legitimate  business,  and  bind  itself  by  a  written  obligation  for  its  repayment, 
lb.     See  also  Curtis  v.  Leavitt,  15  N.  Y.  9,  where   this   subject  is  discussed. 

4  Royal  British  Bank  v.  Turquand,  5  El.  &  Bl.  248 ;  s.  c.  32  Eng.  L.  &  Eq. 
273.  Lord  C.  J '.  ""Campbell  said,  in  giving  judgment:  "A  good  plea  must 
allege  facts  to  establish  illegality,  as  was  done  in  Collins  v.  Blantern,  2  Willes, 
347,  and  Paxton  v.  Popham,  9  East,  408.  A  mere  excess  of  authority  by  the 
directors,  we  think  of  itself  would  not  amount  to  a  defence.  The  bond  beirfg 
under  the  seal  of  the  company,  the  gist  of  the  defence  must  be  illegality.  If 
the  directors  had  exceeded  their  authority,  to  the  prejudice  of  the  shareholders, 
by  executing  the  bond,  and  this  had  been  known  to  the  obligees,  illegality,  we 
think,  would  have  been  shown.     The  obligors  in  executing,  and  the  obligees  in 

pting  the  bond,  might  be  considered  as  combining  together  to  injure  the 
holders.  The  two  parties  would  have  been  in  pari  delicto,  and  the  action 
could  not  have  been  maintained.  In  such  circumstances  potior  est  conditio  de- 
fendentis.  But  without  the  scienter  and  without  prejudice  to  the  shareholders, 
or  any  others  whatsoever,  illegality  is  not  established  against  the  obligees.  If 
no  illegality  is  shown  as  against  the  party  with  whom  the  company  contract  under 
the  seal  of  the  company,  excess  of  authority  is  a  matter  only  between  the  direc- 
tors and  the  shareholders.'"  And  again,  "  The  plaintiffs  have  bona  fide  advanced 
their  in  nicy  tor  the  use  of  the  company,  giving  credit  to  the  representations  of 
the  <lin'.  tors  that  they  had  authority  to  execute  the  bond,  and  the  money  which 
they  advanced,  and  which  they  now  seek  to  recover,  must  be  taken  to  have  been 

L*573] 


§  189.  AUTHORITY   TO   BORROW   MONEY,    ETC.  603 

The  *  defence  must  establish  such  an  excess  of  authority  as  was 
known  to  the  other  party,  or  such  as  may  be  presumed  to  have 
been  so  known,  and  thus  virtually  establish  mala  fides,  both  on 
the  part  of  the  directors  and  the  other  contracting  party.4 

4.  The  case  of  Royal  British  Bank  v.  Turquand,  just  referred 
to,  was  affirmed  in  the  Exchequer  Chamber,5  in  which  a  some- 
what important  distinction  seems  to  be  made  between  a  general 
want  of  authority  in  the  directors  to  do  the  act  in  question  in 
any  case,  and  a  mere  want  of  authority  in  the  particular  in- 
stance, for  want  of  the  requisite  formalities  on  the  part  of  the 
company,  they  being  bound  in  the  latter  and  not  in  the  former 
case.  Jervis,  C.  J.,  in  giving  judgment,  said:  "Parties  dealing 
with  these  joint-stock  companies,  through  the  directors,  are  bound 
to  read  the  deed  or  statute  limiting  the  directors'  authority, 
but  they  are  not  bound  to  do  more.  The  plaintiffs,  therefore, 
assuming  them  to  have  read  this  deed,  would  have  found,  *  not 
a  prohibition  to  borrow,  but  a  permission  to  borrow,  on  cer- 
tain things  being  done.  They  have,  in  my  opinion,  a  right  to 
infer,  that  the  company  which  put  forward  their  directors  to 
issue  a  bond  of  this  sort,  have  had  such  a  meeting,  and  such  a 
resolution  passed,  as  are  requisite  to  authorize  the  directors  in  so 
doing."  This  rule  has  been  extended  to  negotiable  paper  drawn 
in  the  name  of  the  company  by  the  directors,  beyond  the  scope  of 
their  powers  to  bind  the  company,6  even  while  in  the  hands  of  a 
bona  fide  holder. 

5.  It  was  held  that  a  joint-stock  business  company  had  no  power 
to  take  stock  in  a  savings  bank,  and  that  a  loan  effected  by  that 
means  could  only  be  enforced  to  the  extent  of  the  money  actually 

applied  in  the  business  of  the  company,  and  for  the  benefit  of  the  shareholders." 
"  The  case  of  Hill  v.  Manchester  Waterworks  Co.,  2  B.  &  Ad.  866,  is  an  instance 
of  such  a  bond  being  upheld,  the  pleas  not  disclosing  any  fraud  or  injury  done  to 
the  shareholders  of  the  company,  and  the  case  of  Horton  v.  Westminster  Im- 
provement Commiss.,  7  Exch.  911;  s.  c.  14  Eng.  L.  &  Eq.  378,  was  decided 
on  the  same  principle."  Agar  v.  Athenaeum  Life  Assurance  Co.,  3  C.  B.  (N.  S.) 
725 ;  s.  c.  30  Law  Times,  302,  is  decided  on  the  authority  of  R.  British  Bank  v. 
Turquand,  infra,  n.  5.  A  release  purporting  to  be  under  the  corporate  seal,  and 
signed  by  the  president  of  the  company,  and  exhibited  by  them  in  court,  as  their 
act,  would  operate  as  an  estoppel  upon  the  company,  in  any  suit  between  the 
party  as  to  whom  the  release  was  given  and  the  company.  Scaggs  v.  Baltimore  & 
Wash.  Railw.,  10  Md.  268. 

5  6  El.  &  Bl.  327 ;  s.  c.  36  Eng.  L.  &  Eq.  142. 

6  Font,  §  239,  pi.  5. 

[*574,  575] 


604  RAILWAY    DIRECTORS.  PART  VI. 

rccoi\i'il   by  the  company  over  and   above  the  amount  retained 
upon  the  subscription.7 

6.  There  Beems  to  be  no  question  made  of  the  general  right 
of  corporations,  both  public  and  private,  to  borrow  money,  so 
far  as  their  legal  functions  may  require  it.  The  rule  has 
been  extended  to  insurance  companies.8  But  it  was  once  doubted 
whether  this  could  be  done  except  under  the  corporate  seal.9  But 
the  cases  now  show  that  no  such  thing  is  requisite.10 

7.  It  is  made  a  question  in  one  case,11  how  far  the  proposi- 
tion by  one  to  subscribe  to  the  stock  of  the  company,  payable  in 
certain  specified  lands  at  a  given  price,  may  be  lawfully  accepted 
by  the  directors  of  the  company,  and  whether  the  same  should  not 
be  made  by  a  special  agent  appointed  for  that  purpose.  *  But  it 
was  held  clearly  that  the  separate  consent  of  several  members  of 
the  board,  not  shown  to  constitute  a  quorum,  did  not  create  an 
acceptance  binding  upon  the  company. 

7  Mutual  Savings  Bank  v.  Meriden  Agency  Co.,  24  Conn.  159.  See  also 
post,  §  211,  note  3. 

8  Nelson  v.  Eaton,  26  N.  Y.  410. 

9  Wilmot  v.  Corporation  of  Coventry,  1  Younge  &  Coll.  Exchequer,  518. 

10  Marshall  v.  Queenborough,  1  Simons  &  Stu.  520.  See  cases  before  referred 
to  in  this  section.  And  it  was  held  that  the  directors  of  a  company  incorporated 
for  making  a  cemetery  could  not  raise  money,  by  indorsing  and  accepting  bills, 
for  the  purposes  of  the  undertaking.  Steele  v.  Harmer,  14  M.  &  W.  831.  The 
same  principle  is  recognized  in  the  earlier  cases.  Broughton  v.  Manchester 
Waterworks,  3  B.  &  Aid.  1 ;  Clarke  v.  Imperial  Gas-Light  Co.,  4  B.  &  Ad.  315. 
And  where  the  by-laws  of  the  corporation  provide  that  in  the  management  of  its 
affair--  the  directors  shall  have  all  the  powers  of  the  corporation  not  inconsistent 
with  the  by-laws  or  the  laws  of  the  commonwealth,  and  there  is  no  prohibition, 
in  the  by-laws,  of  the  directors  borrowing  money,  issuing  bonds,  or  conveying 
the  lands  of  the  company,  the  directors  may  exercise  such  powers.  Hendee  v. 
Pinkerton,  14  Allen,  381.  And  where  municipalities  are  empowered  to  subscribe 
to  the  stock  of  a  railway  and  pay  the  subscription  in  its  own  bonds,  it  is  compe- 
tent for  the  railway  to  negotiate  the  bonds,  with  its  own  guaranty,  in  order  to 
raise  money  for  its  convenient  uses.     Railw.  Co.  v.  Howard,  7  Wall.  392. 

"  Junction  11.  Co.  v.  Reeve,  15  Ind.  236. 

[*576] 


§140. 


MUST    SERVE    INTEREST    OP    COMPANY. 


605 


SECTION     VI. 


Duty  of  Railway  Directors  to  serve  the  Interests  of  Company. 


1.  General  duty  of  such  office  defined. 

2.  Claim  for  secret  service  and  influence  with 

directors. 

3.  Opinion   of  Justice   Hoffman   upon   the 

legality  of  such  contracts. 
n.  3.   Cases  reviewed  upon  the  subject  of  secret 
services. 

4.  Directors  cannot  buy  of  themselves  for  the 

company.      What  amounts  to  ratifica- 
tion. 

5.  The  point  further  illustrated.     Authority 

of  directors. 

6.  Purchase  of  shares  to  buy  peace. 

7.  Director  may  loan  money  to  company. 

8.  Director  de  facto  sufficient. 

9.  Hotel    company    may   lease   premises    to 

others. 


10.  Director  cannot  recover  for  work  done  for 

company. 

11.  Contract  of  projector  not  binding  on  com- 

pany. 

12.  Director  cannot  act  where  interested. 

13.  Court  will  not  act  on  petition  of  member  ' 

who  is  a  mere  puppet  for  others. 

14.  Cannot  charge  costs  of  libel  suit  to  com- 

pany. 

15.  Directors  responsible  for  wrongful  acts  of 

each  other,  if  known  at  the  time. 

16.  Right  of  courts  to  appoint  receivers  and 

take  the  management  of  corporations. 

17.  Directors  personally  responsible  for  money 

expended  in  raising  the  price  of  shares. 


§  140.  1.  The  general  duty  of  railway  directors  is  stated,  some- 
what in  detail,  in  another  part  of  this  work.1  It  is  an  important 
and  public  trust,  and  whether  undertaken  for  compensation  or 
gratuitously,  imposes  a  duty  of  faithfulness,  diligence,  and  truth- 
fulness in  the  discharge  of  its  functions,  in  proportion  to  its  diffi- 
culty and  responsibility. 

2.  An  important  case,  involving  incidentally  the  duty  of 
railway  directors,  arose  in  the  Superior  Court  of  the  city  of 
New  York.2  The  plaintiff  claimed  pay  for  labor  and  services,  in 
procuring  for  the  defendants  the  contract  for  the  construction  and 
equipment  of  the  Ohio  and  Mississippi  Railway,  from  Cincinnati 
to  St.  Louis.'  The  mode  of  his  performing  this  service  seems  to 
have  been  through  one  Clement,  who  knew  nothing  of  defendants, 
but  who  acted  upon  the  plaintiff's  recommendation  of  them,  and, 
for  the  agreed  compensation  of  $10,000,  secretly  influenced  the 
directors  of  the  railway,  by  personal  solicitation,  to  give  the  con- 
tract to  the  defendants. 


1  Post,  §  211,  n.  6. 

s  Davison  v.  Seymour  et  al.,  1  Bosworth,  88  ;  Redmond  v.  Dickerson,  1  Stock- 
ton, Ch.  507. 

1*516] 


C0(5  RAILWAY    DIRECTORS.  PART  VI. 

3.  Mr.  .Justice  Hoffmann,  in  giving  judgment,  makes  some 
Minns,  upon  the  general  subject,  well  worthy  6f  our  notice. 
*u  Undoubtedly  tins  was  the  employment  of  Clement,  for  a  bribe, 
to  use  personal  influence  with  the  directors,  to  secure  a  lucra- 
tive con t met  for  one  of  whose  capacity  and  responsibility  he 
was  entirely  ignorant.  He  was  to  use  this  secretly,  and  with 
individuals. 

"  The  directors  of  this  great  railroad  scheme,  if  they  stood  not 
in  the  capacity  of  public  officers,  owing  a  duty  to  the  state,  yet 
were  trustees  of  the  stockholders  of  the  road,  and  owed  the  best 
efforts  of  industry,  integrity,  and  economy  to  them. 

"  No  one  can  deny,  that  a  stipulation  for  any  personal  advan- 
tage or  profit,  which  might  attend  and  influence  the  discharge 
of  their  trust  to  the  stockholders,  would  be  a  violation  of  duty  ; 
and  no  engagement  given  to  them,  or  contracts  made  with  them, 
for  that  object  could  bear  the  scrutiny  of  the  law. 

"  If,  again,  one  of  their  officers,  if  Mitchell,  for  example,  em- 
powered to  negotiate  and  finally  to  settle  the  contract  with  Sey- 
mour, had  received  an  obligation  for  the  payment  of  a  sum  of 
money  for  his  services,  it  could  never  have  been  enforced."  The 
learned  justice  cited  and  commented  upon  the  following  cases 
in  support  of  the  principle  which  would  avoid  such  agreements;3 

3  Gray  v.  Hook,  4  Comst.  449  ;  Waldo  v.  Martin,  4  Barn.  &  Cress.  319  ;  s.  c. 
2  Carr.  &  Payne,  1 ;  Harrington  v.  du  Chastel,  2  Swanston,  167  ;  Hopkins  v. 
Prescott,  4  Com.  Ben.  578;  Money  v.  Maeleod,  2  Simons  &  Stuart,  301  ;  Mar- 
shall v.  Baltimore  and  Ohio  Railroad  Co.,  1G  Howard  (U.  S.),  314,  325;  Fuller 
v.  Dame,  18  Pick.  472.  Lord  Chancellor  Eldon  says,  in  regard  to  one  acting 
as  the  agent  of  others,  and  who  secured  a  large  sum  to  himself,  without  the 
knowledge  of  those  on  whose  behalf  he  acted,  "  It  is  impossible  for  this  court 
to  sanction  such  a  proceeding."  Fawcett  v.  Whitehouse,  1  Russ.  &  M.  132. 
Mr.  Shelf ord,  the  learned  author  of  the  Treatise  on  Railways,  thus  lays  down 
the  rule,  in  regard  to  the  duty  of  the  directors  of  a  railway  company,  pp.  193, 
194.  "The  employment  of  a  director  is  of  a  mixed  nature,  partaking  of  the 
nature  of  a  public  oflice.  .  .  .  If  some  directors  are  guilty  of  a  gross  non-attend- 
ance, and  leave  the  management  entirely  to  others,  they  may  be  guilty,  by  these 
means,  of  the  breaches  of  trust  which  are  committed  by  others.  By  accepting 
a  trust  of  this  sort,  persons  are  obliged  to  execute  it  with  fidelity  and  reasonable 
diligence,  and  it  is  no  excuse  that  they  had  no  benefit  from  it,  and  that  it  was 
merely  honorary.  .  .  .  Supine  and  gross  negligences  of  duty  will  amount  to  a 
breach  of  trust."  Charitable  Corporation  v.  Sutton,  2  Atk.  400.  The  same 
principle,  in  regard  to  the  effect  of  the  service  being  gratuitous,  is  found  in  the 
celebrated  ease  of  Coggs  v.  Bernard,  1  Salk.  26.  In  Marshall  v.  Baltimore  and 
Ohio  Railw.,   supra,  Mr.  Justice  Qrier  made  some  very  pertinent  remarks,  in 

[*577] 


§  140.  MUST    SERVE   INTEREST   OP    COMPANY.  607 

*  and  continued:  "I  am  led  to  the  conclusion,  that  it  would  be 
impossible  to  allow  Clement  to  sustain  an  action  upon  the  agree- 

regard  to  the  duty  of  courts  of  justice,  in  enforcing  against  railway  companies 
contracts  for  obtaining  legislative  grants,  by  extraordinary  efforts  and  influences, 
secretly  exercised.     This  was  an  action  to  recover  $50,000  for  secret  service,  in 
getting  a  bill  through  the  legislature  of  Virginia,  giving  the   company  the  right 
to  carry  their  road  through  the  state.     The  learned  judge  said:   "All  persons 
whose  interests  may  in  any  way  be  affected  by  any  public  or  private  act  of  the 
legislature,  have  an  undoubted  right  to  urge  their  claims  and  arguments,  either 
in  person  or  by  counsel  professing  to  act  for  them,  before  legislative  committees, 
as  well  as  in  courts  of  justice.     But  where  persons  act  as  counsel  or  agents,  or  in 
any  representative  capacity,  it  is  due  to  those  before  whom  they  plead  or  solicit, 
that  they  should  honestly  appear  in  their  true  characters,  so  that  their  arguments 
and  representations,  openly  and  candidly  made,  may  receive  their  just  weight 
and  consideration.     A  hired  advocate  or  agent  assuming  to  act  in  a  different 
character  is  practising  deceit  on  the  legislature.     Advice  or  information  flowing 
from  the  unbiassed  judgment  of  disinterested  persons,  will  naturally  be  received 
with  more  confidence  and  be  less  scrupulously  examined  than  where  the  recom- 
mendations   are  known   to   be   the  result   of  pecuniary  interest,   or   the  argu- 
ments prompted  and    pressed  by  hope  of  a  large  contingent  reward,  and  the 
agent   'stimulated  to    active    partisanship    by  the   strong   lure   of  high   profit.' 
Any  attempts  to    deceive  persons   intrusted  with   the    high  functions    of  legis- 
lation, by  secret  combinations,  or  to  create  or  bring  into  operation  undue  influ- 
ences of  any  kind,  have  all  the  injurious  effects  of  a  direct  fraud  on  the  public. 
Legislators   should  act  with  a  single  eye  to  the  true  interests  of  the  whole  peo- 
ple, and  courts  of  justice  can  give  no  countenance  to  the  use  of  means,  which 
may  subject  them  to    be   misled   by  the   pertinacious   importunity  and  indirect 
influences   of   interested    and    unscrupulous   agents    or    solicitors.      Influences 
secretly   urged    under   false    and    covert   pretences   must    necessarily    operate 
deleteriously  on  legislative  action,  whether   it  be  employed  to  obtain  the  pas- 
sage of  private  or  public  acts.     Bribes,  in  the  shape  of  high  contingent  com- 
pensation, must  necessarily  lead  to  the  use  of  improper  means  and  the  exercise 
of  undue  influence.     Their  necessary  consequence  is  the  demoralization  of  the 
agent  who  covenants  for  them ;  he  is  soon  brought  to  believe  that  any  means 
which  will  produce  so  beneficial  a  result  to  himself  are  '  proper  means,'  and  that 
a  share  of  these  profits  may  have  the  same  effect  of  quickening  the  perceptions 
and  warming  the  zeal  of  influential  or  '  careless'  members  in  favor  of  his  bill. 
The  use  of  such  means  and  such  agents  will  have  the  effect  to  subject  the  state 
governments   to   the   combined   capital   of  wealthy  corporations,   and   produce 
universal  corruption,  commencing  with  the  representative  and  ending  with  the 
elector.     Speculators    in   legislation,  public    and  private,   a   compact  corps   of 
venal  solicitors,   vending  their  secret  influences,  will  infest  the  capital  of  the 
Union,  and  of  every  state,  till  corruption  shall  become  the  normal  condition  of 
the  body  politic,  and  it  will  be  said  of  us  as  of  Rome,  —  '  omne  Romce  venale."1 " 
The   following  cases   take  a  similar  view.     Wood  v.   McCann,  6  Dana,  366  ; 
Hunt  v.  Test,  8  Ala.  713;  Harris  v.  Roof,   10  Barb.  489;    Rose  v.  Truax,  21 
Barb.  361.     The  enormity  of  such  transactions,  in   some  quarters,   if  universal 

[*578] 


608  RAILWAY   DIRECTORS.  PART  VI. 

ment*  with  him.  There  was  in  it  most  of  the  elements  of  a 
vicious  contract,  which  have  avoided  similar  obligations  in  the 
•leading  cases  cited.  There  was  secrecy,  individual  application, 
a  concealed  promise  of  compensation,  and  utter  ignorance  and 
*  recklessness  as  to  the  competency  of  the  party  whose  cause  he 
was  promoting,  and  whose  reward  he  was  to  receive.  There  is 
the  difference,  that  these  directors  were  servants  of  an  organiza- 
tion inferior  to  that  of  a  state,  yet  acting  in  a  very  spacious 
sphere,  and  representing  an  extensive  body  of  constituents.     The 

and  concurrent  general  opinion  may  be  regarded  as  authentic,  is  truly  appalling 
to  any  just  sentiment  of  confidence  in  official  fairness,  and  responsible  relation 
to  public  trusts.  It  is  probable  that  the  virus  of  the  disease  lies  deeper  in  the 
fountains  of  the  common  moral  sentiment  than, we  have  generally  supposed. 
We  feel  no  disposition  to  join  in  a  general  outcry  upon  the  subject.  For  we  do 
not  believe,  as  a  general  thing,  that  such  evils  are  likely  to  be  cured  by  any 
formal  criticisms,  either  in  the  abstract  or  in  particular  cases,  whether  it  come 
from  the  bench  or  the  press.  The  difficulty  is  one  which,  for  its  cure,  demands 
sterner  remedies.  The  perpetrators  of  such  enormities  are  quite  too  apt  to  con- 
sider, that  because  they  have  been  made  the  victims  of  some  severe  strictures, 
in  high  places  perhaps,  they  have  expiated  their  guilt,  and  perhaps  earned  an 
indulgence  for  the  future  ;  and  so  rush  at  once  into  a  deeper  chasm  of  iniquity, 
just  as  soon  as  another  tempting  occasion  presents.  And  it  is  not  uncommon, 
that  the  administrators  of  the  law,  even  in  such  cases,  after  having  administered 
a  somewhat  scathing  rebuke  to  the  perpetrators  of  such  crimes,  begin  to  feel  com- 
punctious visitings,  and  terminate  the  drama,  which  was  introduced  with  such  a 
high-sounding  announcement,  by  the  infliction  of  a  most  insignificant  penalty, 
which  renders  both  the  law  and  its  ministers  more  or  less  objects  of  contempt. 
The  true  method  undoubtedly,  in  such  cases,  if  we  desire  to  make  the  law,  as 
it  should  be,  a  just  and  unaffected  terror  to  evil-doers,  is  to  say  little,  but  do 
justice.  Let  the  judgments  of  the  courts,  rather  than  the  comments  of  the 
judges,  testify  to  the  sense  of  abhorrence  of  such  crimes.  These  philippics  from 
the  bench  generally  are  very  justly  regarded,  not  only  by  the  people  at  large, 
but  by  the  culprits  themselves,  as  a  kind  of  apology  for  the  sentence,  and  thus 
destroy  half  its  good  effect.  And  if  the  other  half  is  deducted  by  the  judge,  on 
account  of  the  plainness  and  the  honesty  of  the  rebuke  which  he  has  already 
administered  to  the  offender,  very  little  remains.  But  the  exposition  of  the  sub- 
ject, in  an  important  case  in  the  city  of  New  York,  is  so  instructive,  that  we 
venture  to  refer  to  it.  In  re  Robert  W.  Lowber  v.  The  Mayor,  Aldermen, 
and  Commonalty  of  the  city  of  New  York ;  and  In  re  A.  C.  Flagg,  Comptroller, 
and  others,  taxpayers  v.  Lowber.  The  gist  of  these  cross-actions  is,  that  by 
collusion  with  certain  of  the  city  authorities,  Lowber  was  to  receive  $200,000  for 
a  piece  of  land  for  a  market  on  the  East  River.  The  arrangement  was  made  by 
consenting  to  a  judgment  of  court  on  the  report  of  a  referee.  Comptroller  Flagg, 
upon  hearing  of  this  judgment,  took  measures  for  obtaining  a  stay  of  proceed- 
ings. See  also  Semmes  v.  Mayor,  &c.  of  Columbus,  19  Ga.  471.  Ante,  §  137. 
[*579-5Sl] 


§  140.  MUST   SERVE   INTEREST   OF   COMPANY.  609 

difference  between  their  position  and  that  of  legislators,  upon  a 
question  like  this,  appears  to  me  but  shadowy.  "  If,  then,  the 
claim  of  Clement  would  be  promptly  rejected,  does  the  present 
plaintiff  stand  in  a  better  position  ?  His  original  employment 
might  have  been  consistent  with  an  open,  avowed  agency,  an  intent 
or  instructions  to  make  it  known,  and  thus  be  free  from  all  ob- 
jections. But  we  are  left  in  ignorance  of  what  the  terms  of  such 
original  agreement  were, — how  far  they  extended.  All  is  indefi- 
nite, except  merely  an  employment.  He  engages  Clement,  and 
here  again,  that  employment  may  have  been  perfectly  free  from 
censure  on  the  plaintiff's  part.  But  upon  the  best  consideration 
we  can  give,  we  cannot  separate  the  act  of  Clement  from  the  acts 
of  the  plaintiff.  There  is  a  legal  identity  for  the  purposes  of  this 
action.  The  plaintiff  must  be  held  to  have  employed  Clement  to 
do  what  he  did  do,  or  to  have  been  bound  to  superintend  his  pro- 
ceedings, and  free  them  from  what  was  illegal.  It  is  impossible  to 
permit  him  to  profit  by  the  misdeeds  of  his  own  agents,  however 
ignorant  and  exempt  from  them  himself.  His  ignorance,  when 
knowledge  was  a  duty,  becomes  equivalent  to  a  fault." 

4.  The  directors  of  a  corporation,  created  for  business  purposes 
and  profit,  are  trustees  for  the  shareholders,  and  owe  them  all  the 
duties  and  responsibilities  which  attach  to  other  trustees  and 
agents.  If,  therefore,  a  director  enter  into  a  contract  for  the 
company,  he  can  derive  no  personal  benefit  from  it.4  Accordingly, 
*  where  the  company  had  furnished  the  director  with  a  large  sum 
of  money,  to  enable  him  to  purchase  the  concession  of  another 
company  in  regard  to  their  line,  and  he  purchased  it,  as  it  turned 
out,  of  himself,  being  the  concealed  owner  of  it,  it  was  held  that 
the  transaction  could  not  stand  ;  but  the  company  must  adopt  or 
repudiate  it  altogether.  But  the  company  having  sold  the  con- 
cession during  the  pendency  of  a  suit  impeaching  the  transaction, 
it  was  held  they  could  have  no  relief,  either  as  to  the  application  of 
the  money  or  otherwise.5 

5.  And  where  the  directors  of  an  insurance  company  had  pur- 
chased the  stock  of  one  of  the  board,  and  allowed  him  to  retire 

4  Great  Luxembourg  Railw.  v.  Magnay,  25  Beav.  586;  s  c.  4  Jur.  (N.  S.) 
839;  s.  p.  Kimber  v.  Barber,  20  W.  R.  602.  And  the  fact  that  the  company 
suffer  no  detriment  will  make  no  difference.  Flint  &  P.  M.  Railw.  v  Dewey,  14 
Mich.  477. 

5  See  also  Sturges  v.  Knapp,  31  Vt.  1. 

39  [*582] 


610  RAILWAY    DIRECTORS.  PART  VI. 

from  his  position  both  as  director  and  shareholder,  and  had  used 
the  funds  of  the  company  to  compensate  him  for  his  shares,  it  was 
held  that  this  was  such  an  irregularity  as  could  not  be  confirmed 
and  localized  by  a  meeting  of  the  shareholders  even,  unless  the 
deed  of  settlement  under  which  the  company  was  formed  provided 
for  its  being  so  ratified,  or  for  its  transaction  by  the  directors.6 
And  it  was  held,  that  in  such  case  a  bill  in  equity,  filed  by  certain 
shareholders  on  behalf  of  themselves  and  the  others  against  the 
company  and  the  directors,  praying  that  the  directors  might  be 
decreed  to  restore  to  the  company  the  funds  so  diverted  by  them, 
was  maintainable.6 

6.  It  seems  to  be  regarded  as  a  valid  contract  between  the 
different  directors  of  a  corporation,  by  which  one  portion  purchase 
the  interest  of  another  portion,  to  enable  them  to  retire  with  a 
view  to  heal  dissensions  in  the  board  ;  and  the  fact  that  the  money 
is  paid  by  the  company's  bankers  and  refunded  by  a  resale  of  the 
shares  thus  purchased,  will  not  render  the  contract  invalid.7 

7.  But  where  by  a  constitutional  provision  of  a  corporation  the 
director's  office  was  vacated,  if  he  participated  in  the  profits  of  any 
contract  with  the  company,  but  the  company  were  empowered  to 
borrow  money  on  the  director's  own  individual  responsibility,  or 
on  other  securities,  it  was  held  that  a  director,  lending  his  own 
money  to  the  company  at  a  large  interest,  was  not  thereby  disqual- 
ified from  being  a  director.8 

*  8.  A  director  who  acts  as  such  by  sitting  at  the  board  and 
executing  works  for  the  company,  will  be  treated  as  such  so  far 
as  his  claim  against  the  company  is  concerned,  although  he  was 
not  properly  appointed.9 

9.  It  is  not  ultra  vires  for  a  hotel  company  to  lease  part  of  their 
premises  to  a  business  company,  with  the  condition  that  the  first 
company  shall  have  the  exclusive  privilege  of  supplying  the  por- 
tions so  leased  with  all  provisions,  wines,  and  liquors.10 

8  Ilodgkinson  v.  National  Live  Stock  Ins.  Co.,  5  Jur.  (N.  S.)  478,  9C9  ;  s.  c. 
26  Beav.  473. 

7  Baddon  v.  Ayers,  1  Ellis  &  Ellis,  118;  s.'c.  5  Jur.  (N.  S.)  408. 

8  Bluck  v.  Mullalue,  5  Jur.  (N.  S.)  1018 ;  s.  c.  27  Beav.  39.S.  A  director 
cannot  derive  any  benefit,  directly  or  indirectly,  from  contracts  made  by  him 
with  contractors  for  construction  of  the  road.  E.  &  A.  Raihv.  v.  Poor,  59  Me. 
277. 

9  South  Essex  Gas  Light  &  Coke  Co.,  in  re,  20  L.  J.  Ch.  43. 

,0  Simpson  v.  Westminster  Palace  Hotel  Co.,  6  Jur.  (N.  S.)  985;  s.  c.  2  De 
[588] 


§  140.  MUST   SERVE   INTEREST   OP   COMPANY.  611 

10.  Under  the  English  statute  u  it  is  an  answer  to  a  claim  for 
compensation  for  works  of  the  company  executed  by  the  plaintiff, 
that  he  was  at  the  time  of  entering  into  the  contract  interested 
therein,  and  it  makes  no  difference  that  the  consideration  was 
executed,  and  the  company  had  had  the  benefit  of  the  con- 
tract.12 

11.  A  contract  made  between  the  projector  of  a  corporation  and 
the  directors  of  the  company  thereafter  created,  which  is  not  in 
terms  made  conditional  on  the  completion  of  the  company,  is  not 
under  the  English  statute  binding  upon  the  company  when  fully 
established.13 

12.  A  rule  of  the  constitution  of  the  company,  whereby  a  direc- 
tor is  prohibited  from  voting  upon  any  matter  in  which  he  is  inter- 
ested, will  not  preclude  him  from  voting  as  a  shareholder  at  a 
general  meeting.14  But  the  resolution  of  a  board  of  directors,  of 
which  the  creditor  is  a  member,  acknowledging  the  existence  of  a 
debt  barred  by  the  statute  of  limitations,  will  not  operate  to  remove 
*  such  bar,  if  indeed  any  resolution  of  the  board  will  bind  the  com- 
pany to  that  extent.16 

13.  Although  it  is  the  unquestionable  right  of  every  menber  of 
the  company  to  restrain  the  unlawful  acts  of  the  directors,  still 
when  it  appears  that  the  plaintiff  is  a  mere  puppet  in  the  hands  of 
others  not  members  of  the  company,  who  indemnify  him  against 
the  costs  of  the  suit,  the  court  will  not  interfere  by  interlocutory 
injunction.16 

G.,  F.  &  J.  141 ;  s.  c.  8  Ho.  Lds.  Cas.  712.  But  where  the  promoters  of  a  rail- 
way contracted  with  a  land-owner,  a  peer  in  parliament,  to  pay  him  £2D,000, 
for  his  countenance  and  support  in  obtaining  their  act,  independent  of  and  above 
all  ordinary  compensation  for  land  and  other  damages,  another  separate  contract 
defining  the  land  to  be  taken  and  the  amount  to  be  paid  therefor,  the  directors  of 
the  company  after  its  organization  having  ratified  the  first  contract,  it  was  held 
that  the  original  agreement  and  the  ratification  by  the  directors  were  ultra  vires 
of  the  company,  and  could  not  be  enforced  against  it.  Earl  of  Shrewsbury  v. 
North  Staffordshire  Railw.,  Law  Rep.,  1  Eq.  593.  See  also  The  Joint-Stock 
Discount  Co.  v.  Brown,  12  Jur.  (N.  S.)  899  ;  s.  c.  L.  R.  3  Eq.  139. 

»  7  &  8  Vict.  c.  110,  §  29. 

12#  Stcars  v.  South  Essex  Gas  Light  &  Coke  Co.,  9  C.  B-  (N.  S.)  180;  s.  c. 
7  Jur.  (N.  S.)  447.     See  also  Walker  ex  parte,  8  De  G.,  M.  &  G.  6U7. 

13  Gunn  v.  London  &  Lancashire  Ass.  Co.,  12  C.  B.  (N.  S.)  694. 

14  Lead  Mining  Co.  v.  Merryweather,  10  Jur.  (N.  S.)  1231 ;  s.  c.  2  H.  &  M. 
254. 

15  Gold  Mining  Co.,  ex  parte,  10  L.  T.  (N.  S.)  229. 

16  Filder  v.  L.  Brighton  &  South  Coast  Railw.  Co.,  1  H.  &  M.  489. 

[*584] 


612  RAILWAY    DIRECTORS.  PART  VI. 

14.  Where  the  directors,  in  good  faith,  for  the  benefit  of  the 
company,  commenced  a  criminal  prosecution  for  libel  against 
the  members  of  a  committee  of  inspection  and  investigation  of 
tin'  affairs  of  the  company  and  the  conduct  of  the  directors,  ap- 
pointed by  dissatisfied  shareholders,  it  is  not  competent  for  them 
to  charge  the  costs  of  such  prosecution  against  the  company,  or 
pay  them  out  of  the  company  funds  ;  and  a  court  of  equity,  at  the 
suit  of  any  dissentient  shareholder,  will  enjoin  the  directors  from 
doing  so  in  future,  notwithstanding  their  conduct  had  been  sanc- 
tioned, as  to  a  portion  of  the  payments  then  made,  at  the  half-yearly 
meeting  of  the  shareholders.  But  as  the  court  has  a  discretion  in 
granting  relief  by  injunction  in  such  cases,  it  will  not,  in  that 
mode,  compel  the  directors  to  refund  the  money  so  paid  by  them 
and  sanctioned  by  the  majority  of  the  shareholders  before  proceed- 
ings taken  to  enjoin  them.17 

15.  One  railway  director  will  be  held  responsible  for  any  unlaw- 
ful act  of  the  others  in  misapplying  the  funds  of  the  company,  if 
known  to  him  and  he  took  no  steps  to  hinder  it.  In  such  cases  it 
is  his  duty  to  take  effective  steps  against  all  such  acts  of  his  co- 
directors  ;  and  if  need  be  to  resort  to  an  injunction  in  chancery, 
and  if  he  omit  to  do  so  he  will  be  regarded  as  assenting  to  such 
acts.18 

16.  The  courts  have  no  visitatorial  powers  over  corporations 
except  what  is  given  by  statute,  and  can  only  withdraw  the  control 
of  the  same  from  the  directors  and  shareholders  and  put  its  man- 
agement into  the  hands  of  receivers,  when  it  appears  that  the  man- 
agement of  the  company  is  conducted  with  a  fraudulent  disregard  of 
the  interests  of  the  shareholders  or  the  public.19 

17.  Directors  will  be  held  personally  responsible  for  money  ex- 

17  1  ickering  v.  Stephenson,  20  W.  R.  654,  where  a  very  interesting  opinion 
was  delivered  by  Wickens,  V.  C.  ;  s.  c.  L.  R.  14  Eq.  322. 

,s  Joint-Stock  Discount  Co.  v.  Brown,  17  W.  R.  1037  ;  s.  c.  L.  R.  8  Eq.  381. 
It  is  no  excuse  for  the  director  who  signed  improper  checks  on  behalf  of  the  com- 
pany, that  he  did  it  as  mere  routine.  lb.  ;  Ottoman  Co.  v.  Farley,  17  W.  R. 
761.  But  in  the  very  late  case,  Spering  v.  Smith,  29  Legal  Intell.  245,  it  was 
held,  the  directors  of  a  joint-stock  company  were  not  liable  to  make  good  losses 
caused  by  their  mismanagement  merely.  It  must  appear  that  they  were  guilty 
of  fraud,  wilful  misconduct,  or  breach  of  trust. 

19  Belmont  v.  Erie  Railw.,  52  Barb.  637.     And  it  was  here  held,  that  the 
misconduct  of  the  directors  would  not  justify  taking  the  control  of  the  company 
from  the  stockholders  and  placing  it  under  an  officer  of  the  court. 
[*584] 


§141. 


EMPLOYES    DISMISSED. RULE    OP    DAMAGES. 


613 


pended  by  them  in  "  rigging  the  market,"  as  it  is  called,  that  is 
purchasing  shares  above  par  in  order  to  raise  the   credit  of  the 


company 


20 


SECTION    VII. 


Right  to  dismiss  Employes.  —  Rule  of  Damages,  when  done 

wrongfully. 


1.  Some  cases  hold,  that  if  wrongfully  dis- 

missed may  recover  salary. 

2.  English   courts  do   not  favor   this   view. 

Case  stated  by  English  judges. 

3.  The  American  cases  have  sometimes  taken 

the  same  vieiv. 


Where  the  contract  provides  for  a  term  of 
wages,  after  dismissal,  it  is  to  be  re- 
garded as  liquidated  damages. 

Statute  remedy,  in  favor  of  laborers  of 
contractors,  extends  to  laborers  of  sub- 
contractors. 


§  141.  1.  Where  a  railway  company  dismiss  a  servant,  superin- 
tendent, or  other  employe,  without  just  cause,  it  seems  to  be  con- 
sidered, in  some  cases,  that  they  are  prima  facie  liable  for  the 
salary,  for  the  full  term  of  the  employment.1  This  proposition  has 
been  often  made  by  judges,  and  seems  to  have  been  acquiesced 
in,  by  the  profession,  to  a  very  great  extent,  but  in  an  English 
case,2  where  the  subject  is  examined  with  great  thoroughness,  the 
opinion  of  the  judges  certainly  seems  to  incline  to  a  different  result. 
Patteson,  J.,  said  :  — 

2.  "  I  am  not  aware  that  this  precise  point  has  been  raised  in 
*  any  case."  ..."  Mr.  Smith,  2  L.  Cases,  20,  says,' that  a  clerk, 
servant,  or  agent,  wrongfully  dismissed,  has  his  election  of  three 
remedies.  1.  He  may  bring  a  special  action  for  his  master's 
breach  of  contract,  -in  dismissing  him.  2.  He  may  wait  till  the 
termination  of  the  period  for  which  he  was  hired,  and  may  then 

20  Land  Credit  Co.  of  Ireland  v.  Lord  Fermoy,  17  W.  R.  562 ;  s.  c.  L.  R.  8 
Eq.  7. 

1  Costigan  v.  The  Mohawk  &  Hudson  Railw.,  2  Denio,  609. 

2  Goodman  v.  Pocock,  15  Q.  B.  576.  This  is  the  case  where  a  clerk,  dis- 
missed in  the  middle  of  the  quarter,  brought  an  action  for  the  wrongful  dismissal, 
on  the  special  contract,  and,  in  the  trial  of  the  action,  the  jury  were  instructed 
that  they  should  not,  in  assessing  damages,  take  into  account  the  services  ren- 
dered by  plaintiff  in  the  broken  quarter,  for  which  he  had  received  no  pay.  The 
plaintiff  then  brought  this  action  for  those  services,  and  here  the  court  held,  that 
those  services  should  have  been  taken  into  account  in  assessing  damages  in  the 
former  action,  and  that  no  recovery  could  be  had  in  this  action,  on  account  of 
the  former  recovery. 

*585] 


614  RAILWAY    DIRECTORS.  PART  VI. 

perhaps  Bue  for  his  whole  wages,  in  indebitatus  assumpsit,  relying 
on  the  doctrine  of  constructive  service.  Gandell  v.  Pontigny,  4 
Gamp.  375.  3.  He  may  treat  the  contract  as  rescinded,  and  may 
immediately  sue  upon  a  quantum  meruit,  for  the  work  he  actually 
performed.  Planche*  v.  Colburn,  8  Bing.  14.'  I  think  Mr.  Smith 
has  very  properly  expressed  himself  with  hesitation,  as  to  the 
second  of  the  above  propositions ;  it  seems  to  me  a  doubtful 
point."  Lord  Campbell,  C.  J.,  and  Coleridge,  J.,  both  agree 
that  the  party,  dismissed  without  cause,  may  bring  indebitatus 
assumpsit,  for  the  service  actually  performed,  or  may  sue  for  the 
breach  of  the  contract  in  dismissing  him,  but  cannot  do  both. 
And  Erie,  J.,  lays  down  the  rule  very  distinctly,  and,  as  it 
seems  to  us,  upon  the  only  sound  and  sensible  basis.  "  The  plain- 
tiff had  the  option,  either  to  treat  the  contract  as  rescinded,  and 
to  sue  for  his  actual  service,  or  to  sue  on  the  contract  for  the 
wrongful  dismissal.  ...  As  to  the  other  option,  referred  to  by 
Mr.  Smith,  I  think  that  the  servant  cannot  wait  till  the  expiration 
of  the  period  for  which  he  was  hired,  and  then  sue  for  his  whole 
wages,  on  the  ground  of  a  constructive  service,  after  dismissal.  I 
think  the  true  measure  of  damages  is  the  loss  sustained  at  the 
time  of  dismissal.  The  servant  after  dismissal  may  and  ought 
to  make  the  best  of  his  time,  and  he  may  have  an  opportunity 
of  turning  it  to  advantage.  I  should  not  say  any  thing  that 
might  seem  to  doubt  Mr.  Smith's  very  learned  note,  if  my 
opinion  on  this  point  were  not  fortified  by  the  authority  of  the 
Court  of  Exchequer  Chamber,  in  Elderton  v.  Emmens,  6  Com. 
B.  160." 

3.  The  cases 8  in  this  country  have  sometimes  taken  a  similar 
view  of  the  rule  of  damages,  in  such  cases,  and  the  rule  must,  we 
think,  ultimately  prevail  everywhere.4 

Algeo  v.  Algeo,  10  Serg.  &  Rawle,  235;    Donaldson  v.  Fuller,  3  id.  505 ; 
Perkins  ?;.  Hart,  11  Wheat.  237. 

4  Spear  &  Carlton  v.  Newell  (Sup.  Ct.),  Vt.,  not  reported.  In  this  case  the 
plaintiff  sued  for  the  price  of  rags  and  other  materials  furnished,  to  supply  a 
paper-mill  of  defendant,  under  special  contract.  The  materials  were,  at  one 
time,  unfit  for  use,  on  account  of  latent  defects,  for  which  by  the  contract  the 
plaintiffs  were  liable.  The  defendant  claimed  the  rule  of  damages  should  be  the 
rent  of  the  mill  and  the  expense  of  supplying  workmen  until  good  materials  were 
furnished.  But  the  court  held,  that  it  was  the  duty  of  the  defendant  to  make  the 
best  of  the  case,  on  his  part,  and  that  he  could  only  recover  such  damages  as 
intervened,  before  he  had  opportunity  to  supply  himself  with  proper  materials  for 
use. 

[*585] 


§141.  EMPLOYES    DISMISSED. RULE    OF    DAMAGES.  615 

*  4.  Where  the  contract  specifies  the  time  for  which  the  party- 
employed  shall  be  entitled  to  wages  after  notice  of  dismissal,  that 
is  to  be  regarded  as  stipulated  damages  for  the  breach  of  the  con- 
tract.5 But  even  this  cannot  be  recovered  under  the  iyidebitatus 
count,  for  work  and  labor.6 

5.  Where  the  statute  provides,  that  the  laborers  of  contractors 
upon  a  railway  may  give  notice  to  the  company  of  their  wages  re- 
maining unpaid,  in  certain  contingencies,  and  thus  charge  the 
company,  the  provision  was  held  to  extend  to  laborers  and  work- 
men of  sub-contractors.7 

5  Hartley  v.  Harman,  11  Ad.  &  El.  798. 

6  Fewings  v.  Tisdal,  1  Exch.  295. 

7  Kent  v.  New  York  Central  Railw.,  12  N.  Y. -628 ;  Peters  v.  St.  Louis  & 
Iron  Mountain  Railw.,  24  Mo.  586.  Where  the  statute  in  such  case  makes  the 
company  liable  for  thirty  days'  labor  of  the  workmen,  it  is  not  indispensable  that 
the  labor  should  have  been  performed  in  thirty  consecutive  days,  to  entitle  them 
to  compensation  against  the  company.  Such  claims  may  be  sued  in  the  name  of 
an  assignee,  under  the  new  code  of  Missouri.  lb. ;  post,  §  244,  n.  12.  In  New 
York,  where  the  general  railway  act  gives  the  laborers  upon  railways  a  remedy 
against  any  sum  due  the  contractor,  under  certain  conditions,  it  has  been  decided, 
that  the  provision  only  extends  to  those  who  perform  the  labor  personally,  and 
will  not  embrace  such  as  procure  others  to  perform  labor  upon  the  works,  or  who 
furnish  team-work,  whether  with  or  without  their  own  personal  service.  Balch 
v.  N.  Y.  &  O.  M.  Railw.,  46  N.  Y.  521. 

[*586] 


616 


ARRANGEMENTS    BETWEEN    COMPANIES. 


PART  VI. 


•CHAPTER    XXII. 


ARRANGEMENTS    BETWEEN    DIFFERENT    COMPANIES. 


SECTION     I. 

Leases,  and  similar  Contracts,  require  the  Assent  of  Legislature. 


1.  By  English  statutes  one  company  may  pass 

over  roadqfanoth  r,  but  contfactbinding. 

2.  But  cannot  transfer  duty  of  one  company 

to  another,  without  legislative  grant. 

3.  Original  company  liable   to  public,  after 

such  lease.     But  lessee  not  excused. 

4.  Courts  of  equity  enjoin  companies  from 

leasing,  without  legislative  consent. 

5.  But   such  contracts,  made  by  legislative 

grants,  are  to  be  carried  into  effect. 
tj.   Majority  of  company  may  obtain  enlarged 
powers,  with  new  funds. 

7.  So  the  majority  may  defend  against  pro- 

ceedings in  legislature. 

8.  Legislative  sanction  will  not  render  valid 

contracts  ultra  vires. 


9.  Railway  company  cannot  assume  duties 
of  ferry,  without  legislative  grant. 

10.  The  grant  to  a  railway  of  the  implied 

right  to  establish  a  ferry  over  a  public 
river  directly  beyond  the  terminus  of  its 
road,  does  not  extend  the  responsibility 
of  the  company  to  the  ferry. 

11.  Such  a  ferry  may  become  an  encroachment 

upon  another  by  carrying  passengers 
gratuitously. 

12.  The  grant  to  a  railway  of  a  ferry  in  ex- 

press terms  will  not  authorize  them  to 
carry  any  thing  except  passenger's  and 
freight  passing  over  their  line. 

13.  Legislative  confirmation  of  a  railway  and 

its  location  will  not  affect  its  past 
defaults. 


§  142.  1.  The  English  statute *  gives  special  permission  to  one 
company  to  contract  with  other  companies  for  the  right  of  passage 
over  their  track.  And  this  has  been  construed,  to  give  the  right 
to  contract  for  the  privileges  ordinarily  attaching  to  such  passage, 
of  stopping  at  the  stations,  and  taking  up  and  putting  down  pas- 
sengers and  freight.2  The  parties  will  be  bound  by  the  terms  of 
the  contract,  notwithstanding  the  ninety-second  section  of  the  act, 
which  gives  all  companies  and  persons  the  right  to  use  railways 
upon  the  payment  of  the  tolls  demandable.3 

1  8  &  9  Vict.  c.  20,  §  87. 

*  Simpson  v.  Denison,  10  Hare,  51;  S.  C.  16  Jurist,  828;  2  Shelf.,  Ben.  ed. 
694;   13  Eng.  L.  &  Eq.  359. 

3  Great  Northern  Railw.  v.  Eastern  Co.  Railw.,  9  Hare,  306;  2  Shelf.,  Ben. 
ed.  696;  12  Eng.  L.  &  Eq.  224* 
[*587] 


§  142.    LEASES,  ETC.,  EEQU1RE  CONSENT  OF  LEGISLATURE.      617 

2.  But  an  agreement  between  railway  companies,  without  the 
authority  of  the  legislature,  transferring  the  powers  of  one  com- 
pany to  the  other,  is  against  good  policy,  and  a  court  of  equity 
*  will  not  lend  its  aid  to  carry  such  contract  into  effect.4  But  it 
has  been  held,  that  a  contract,  by  which  one  railway  gives  another 
the  right  of  passage,  upon  the  guaranty  of  a  certain  per  cent  profit 
upon  their  stock  and  all  other  investments,  is  a  payment  of  tolls 
within  the  statute.5  It  seems  to  be  considered,  by  the  English 
courts,  that  one  railway  leasing  its  entire  use  to  another  company 
does  not  come  within  this  section  of  the  general  statute,  and  as 
the  public  thereby  lose  the  security  of  the  first  company,  for  care 
and  diligence,  in  the  discharge  of  its  public  duties,  the  contract, 
unless  made  in  pursuance  of  an  act  of  the  legislature,  or  ratified 
by  such  act,  is  illegal,  as  against  public  policy.6  At  all  events,  a 
court  of  equity  may  properly  decline  to  lend  its  aid  in  enforcing  a 
specific  performance  of  such  contract.7 

4  Same  case,  9  Hare,  306 ;  12  Eng.  L.  &  Eq.  244 ;  South  Yorkshire  Railw. 
v.  Great  N.  Railw.,  19  Eng.  L.  &  Eq.  513 ;  Johnson  v.  Shrewsbury  &  B.  Railw., 
3  De  G.,  M.  &  G.  914 ;  s.  c.  id.  584 ;  Lond.  B.  &  South  Coast  R.  v.  L.  &  S.  W. 
R.  &  Portsra.  R.,  4  De  G.  &  J.  362 ;  s.  c.  5  Jur.  (N.  S.)  801,  where  the  subject 
is  extensively  examined  by  the  Lord  Chancellor,  and  the  cases  commented  upon. 
In  a  case  before  the  Superior  Court  of  Cincinnati,  Ohio  &  Miss.  Railw.  v.  Ind.  & 
Cin.  Railw.,  5  Am.  Law  Reg.  (N.  S.)  733,  the  question  of  the  right  of  a  railway, 
chartered  by  one  state  to  contract  with  the  railways  of  other  states  for  permanent 
privileges  in  running  cars  upon  such  railways,  is  extensively  considered  and 
denied  by  Store?;  J.  The  case  illustrates  very  forcibly  the  demand  which  obvi- 
ously exists  for  making  all  lines  of  railway  extending  into  different  states  national 
agencies  rather  than  mere  state  institutions.  For  military  and  postal  purposes 
railways  are  far  more  national  than  banks,  and  as  means  of  intercommunication 
equal  y  .'o. 

5  The  South  Yorkshire  R.  &  R.  D.  v.  Great  Northern  Railw.,  9  Exch.  55; 
22  Eng.  L.  &  Eq.  531 ;  s.  c.  in  Exchequer  Ch.,  9  Exch.  642;  s.  c.  25  Eng.  L. 
&  Eq.  482.  On  e  company  having  made  a  beneficial  contract  with  another  com- 
pany in  regard  to  traffic,  may,  with  a  lease  of  itself,  transfer  the  benefit  of  this 
contract.  London  &  S.  W.  Railw.  v.  South  E.  Railw.,  8  Exch.  584;  s.  c.  20 
Eng.  L.  &  Eq.  417. 

6  Johnson  v.  The  Shrewsbury  &  Birmingham  Railw.,  3  De  G.,  M.  &  G.  914; 
s.  c.  19  Eng.  L.  &  Eq.  584 ;  Troy  &  Rut.  Railw.  v.  Kerr,  17  Barb.  581.  This 
doctrine  is  reaffirmed  in  the  House  of  Lords  in  Shrewsbury  &  B.  Railw.  v.  L. 
&  N.  W.  R.,  in  May,  1857,  6  Ho.  of  Lds.  113. 

7  South  Yorkshire  &  River  Dun  Co.  v.  Great  N.  Railw.,  19  Eng.  L.  &  Eq. 
513;  Johnson  v.  Shrewsbury  &  Birmingham  R.,  3  De  G.,  M.  &  G.  914;  s.  c. 
Shrewsbury  &  Birm.  Railw.  v.  London  &  N.  W.  &  Shropshire  Union  Railw., 
21  Eng.  L.  &  Eq.  319 ;  s.  c.  1  Eng.  L.  &  Eq.  122 ;  3  De  G.,  M.  &  G.  115.  But 
see  ca^es  ante,  n.  5 ;  post,  §  146. 

[*588] 


618  ARRANGEMENTS    BETWEEN    COMPANIES.  PART  VI. 

3.  But  even  where  such  contracts  have  been  made,  by  permis- 
sion of  the  legislature,  if  lias  been  held,  in  this  country,  that  the 
company  leasing  itself  does  not  thereby  escape  all  responsibility 
*  to  the  public.  But  that  the  public  generally  may  still  look  to  the 
original  company,  as  to  all  its  obligations  and  duties,  which  grow 
out  of  its  relations  to  the  public,  and  are  created  by  charter  and 
the  general  laws  of  the  state,  and  are  independent  of  contract  or 
privity  between  the  party  injured  and  the  railway.8  But  the 
party  in  possession  of  a  railway,  whether  as  lessee  or  trustee, 
under  a  mortgage,  is  primarily  liable  for  all  injuries  and.  defaults.9 

8  Nelson  v.  The  Vermont  &  Canada  Railw.,  26  Vt.  717.  But  it  is,  perhaps, 
worthy  of  consideration,  in  regard  to  this  case,  that  the  effect  of  legislative  con- 
sent to  the  lease  is  not  made  a  point  or  decided  in  this  case.  Sawyer  v.  The  Rut. 
&  Burl.  Railw.,  27  Yt.  370.  And  in  Parker  v.  Rensselaer  &  Saratoga  Railw., 
1C  Barb.  315,  where  the  defendants  were  running  upon  the  Saratoga  and  Sche- 
nectady  Railway  by  virtue  of  a  contract,  and  the  plaintiff's  cow  was  killed  through 
defect  of  cattle-guards,  which  it  was  the  duty  of  the  Saratoga  and  Schenectady 
Railway  to  maintain,  it  was  held  the  defendants  were  not  liable,  the  neglect  being 
attributable  to  the  Saratoga  and  Schenectady  company.  Perhaps  the  only  ques- 
tion in  regard  to  the  soundness  of  this  decision  is,  whether  both  companies  are 
not  chargeable  with  negligence,  the  one  for  suffering  the  road  to  be  used,  and  the 
other  for  using  it  in  that  condition.  This  is  the  view  taken  of  the  law  in  Clement 
v.  Canfield,  28  Vt.  302;  ante,  §  130;  Ohio  <Sj  Miss.  Rail.  v.  Dunbar,  20  111.  623. 

9  Barter  v.  Wheeler,  49  N.  H.  9,  and  cases  cited.  But  in  the  New  York  & 
Maryland  Line  Railw.  v.  Winans,  17  How.  30,  it  is  decided,  that  where  a  railway 
is  chartered  by  one  state,  and  all  its  stock  owned  and  the  road  operated  by  a 
corporation  erected  and  existing  in  another  state,  the  first  corporation  is  never- 
theless liable  to  the  patentee  of  an  improvement  in  railway  cars  for  the  use  of  his 
patent,  cars  of  that  construction  having  been  procured  and  used  upon  the  road 
by  the  corporation  owning  the  stock  of  such  company.  Campbell,  J.,  said, 
"  The  corporation  cannot  absolve  itself  from  the  performance  of  its  obligations, 
without  the  consent  of  the  legislature."  But  one  company  giving  permission  to 
another  to  use  a  part  of  their  track,  do  not  thereby  become  bound  to  keep  the 
track  in  such  repair  as  to  be  safe  for  use.  Nor  do  such  company  thereby  assume 
any  obligation  towards  the  passengers  carried  thereon  by  such  other  company. 
March  v.  Concord  Railw.,  9  Foster,  9  ;  post,  §  144.  See  also  Briggs  v.  Ferrell, 
12  Ired.  1.  And  in  Vermont  Central  Railw.  v.  Baxter,  22  Vt.  365,  the  company 
are  held  liable  for  the  acts  of  the  contractor  in  the  exercise  of  the  right  of  emi- 
nent domain,  in  obtaining  materials  for  constructing  the  road.  And  a  railway 
company  leasjng  the  entire  use  of  its  road  to  another  company,  is  still  responsible 
for  damages  caused  by  fires  communicated  by  the  engines  of  the  lessees  while 
operating  the  road.  And  it  will  make  no  difference  that  one  of  the  buildings 
destroyed  by  the  fire  caught  from  another  building  to  which  the  fire  first  commu- 
nicated. Ingersoll  v.  Stockbridge  &  Pittsfield  Railw.,  8  Allen,  438.  But  in  this 
state  the  general  statutes  of  the  state  expressly  provide  that  the  corporation 

[*589] 


§142.         LEASES,    ETC.,   REQUIRE   CONSENT    OF   LEGISLATURE.  619 

But  there  seems  no  good  reason  to  excuse  the  company,  assum- 
ing to  act  as  common  carriers,  by  virtue  of  the  lease  of  another 
company's  road,  from  the  ordinary  responsibility  of  common  car- 
riers for  the  transportation  across  the  portion  of  the  route  held  by 
lease,  on  the  ground  of  the  responsibility  of  the  company  owning 
and  leasing  the  road,  even  when  the  loss  occurred  from  the  default 
*of  the  latter  company  in  iiot  performing  the  stipulations  in  their 
lease.10  Nor  can  the  lessees  of  a  railway  excuse  themselves  from 
responsibility  in  such  cases  on  the  ground  that  their  lease  is  void, 
being  taken  without  the  sanction  of  the  legislature.10  And  a  rail- 
way company  is  always  responsible  for  an  injury  occasioned  by 
want  of  proper  care  and  prudence  on  the  part  of  its  servants,  in 
the  management  of  a  train  which  is  under  their  exclusive  care, 
management,  and  control,  although  belonging  to  another  com- 
pany.11 But  if  such  injury  is  occasioned  by  the  negligence  of 
another  company,  whose  car,  for  the  purpose  of  being  loaded  by 
the  plaintiff,  has  been  placed  upon  a  side  track  of  defendants' 
which  is  in  constant  use  by  other  roads,  that  other  company  is 
bound  to  use  reasonable  care  to  prevent  a  collision,  and  if  it  fails 
*  to  do  so,  whereby  the  plaintiff  receives  an  injury,  he  cannot  re- 
cover of  the  company  whose  cars  caused  the  collision.11  And  if 
such  injury  results  from  the  negligence  of  another  company,  which 
has  a  joint  right  with  the  defendants  to  use  defendants'  track 
under  a  lease,  and  which  is  running  trains  over  defendants'  road 
on  its  own  account,  the  defendants  are  not  responsible.11  There 
can  be  no  question  of  the  liability  of  the  company  leasing  another 
line  of  railway,  whether  within  or  beyond  the  limits  of  the  state 
where  the  first  company  exists,  for  all  acts  and  omissions  whereby 
injury  accrues  to  other  parties,  while  so  operating  such  other  line, 
as  lessees,  to  the  same  extent  and  in  the  same  manner  precisely 
as  if  such  injury  had  occurred  upon  the  line  of  the  first  company. 
And  it  seems  to  be  the  inclination  of  the  American  courts  to  hold 

owning  the  road  shall  remain  liable  for  all  damage  done  by  other  parties  oper- 
ating the  road.  Genl.  Stat.  ch.  63,  §  116.  And  there  seems  to  be  no  ground  to 
question,  that  upon  generalprinciples,  as  stated  in  the  text,  when  a  railway  and 
its  accessories  are  transferred  by  legislative  sanction  into  the  use  of  other  parties, 
whether  as  lessees  or  trustees  under  a  mortgage,  and  such  parties  continue  to 
operate  the  road,  they  are  the  party  primarily  responsible  for  all  loss  and  dam- 
age.    Barter  v.  Wheeler,  49  N.  H.  9,  and  cases  cited. 

10  McCluer  v.  Manchester  &  Lawrence  Railw.,  13  Gray,  124. 

11  Fletcher  v.  Boston  &  Maine  Railw.,  1  Allen,  9. 

[*590] 


620  ARRANGEMENTS   BETWEEN    COMPANIES.  PART  VI. 

this  iii  regard  even  to  those  companies  who  have  assumed  to 
operate  the  roads  of  other  companies,  whether  temporarily  or  per- 
manently, and  whether  hy  express  legislative  sanction  or  not.12 
This  subject  is  very  extensively  discussed  in  the  case  last  referred 
to,  and  the  views  presented,  although  differing  somewhat  from 
those  hitherto  adopted  by  the  English  courts,  certainly  have  very 
much  to  commend  them  to  favorable  consideration.  But  the 
original  company  will  be  responsible  even  for  the  safe  delivery  of 
goods  carried  over  the  line,  where  it  is  leased  to  a  corporation  out 
of  the  state.13 

*  4.  The  English  courts  have  in  some  instances  even  restrained 
railway  companies  from  carrying  contracts  of  leasing  into  effect, 
without  the  authority  of  the  legislature.14 

5.  But  such  contracts  being  legal,  and  not  inconsistent  with 
the  policy  of  the  acts  of  parliament,  are  to  have  a  reasonable  con- 
struction ;  and  where  by  the  creation  of  new  companies  and  other 
facilities,  the  business  is  very  largely  increased,  the  parties  are 
still  to  abide  by  the  fair  construction  of  the  original  contract,  as 
applicable  to  the  altered  circumstances.15 

6.  There  is  no  doubt  of  the  right  of  a  railway,  company  in  Eng- 
land to  apply  to  the  legislature  for  enlarged  powers,  even  for  the 
power  to  become  amalgamated  with  other  companies,  so  as  to 
make  one  consolidated  company.  And  contracts  between  the  dif- 
ferent companies,  for  this  purpose,  have  been  there  recognized, 
and  enforced  in  courts  of  equity.16  And  while  the  courts  of 
equity  will  enjoin  the  companies  from  applying  their  funds  to 
pay  the  expenses  of  such  parliamentary  proceedings,  they  will  not 
enjoin  them  from  obtaining  additional  powers,  by  legislative  acts, 
when  other  parties   volunteer   to  furnish    the    requisite    funds.17 

11  Bissell  v.  Mich.  So.  &  N.  Ind.  Railw.,  22  N.  Y.  258. 

13  Langley  v.  Boston  &  Maine  Railw.,  10  Gray,  103. 

14  Win.h  v.  Birkenhead,  L.  &  C.  Railw.,  5  De  G.  &  S.  562;  s.  c.  13  Eng. 
L.  &  Eq.  506;  Betnan  v.  Rufford,  1  Simons  (N.  S.),  550;  s.  c.  6  Eng.  L.  & 
Eq.  106. 

16  East  Lancashire  Railw.  v.  The  L.  &  Yorkshire  Railw.,  9  Exch.  591 ;  s.  c. 
25  Eng.  L.  &  Eq.  465. 

10  Mozley  v.  Alston,  1  Phillips,  790,  where  Lord  Cottenham  said:  "There  is 
scarce  a  railway  in  the  kingdom  that  does  not  come  to  parliament  for  extension 
of  powers." 

17  Stevens  v.  South  Devon  Railw.,  9  Hare,  313;  Great  Western  Railw.  v. 
Rushout,  5  De  G.  &  S.  290;  s.  c.  10  Eng.  L.  &  Eq.  72  ;  post,  §  252. 

[*591] 


§  142.    LEASES,  ETC.,  REQUIRE  CONSENT  OP  LEGISLATURE.      621 

And  there  seems  to  be  no  question  made  in  the  English  courts, 
of  the  power  of  parliament  to  extend  the  line  of  a  railway,  or  to 
consolidate  existing  companies,  and  that  the  shareholders  are 
bound  by  the  acceptance  of  such  legislative  provisions,  by  a  ma- 
jority of  the  company,  or  by  contracts  to  procure  such  powers  by 
act  of  parliament. ]8 

*  7.  And  it  has  accordingly  been  held,  that  a  public  company, 
as  the  commissioners  of  sewers  for  a  county,  might  impose  a  rate 
to  defray  the  expense  of  opposing  a  bill,  in  parliament,  which 
threatened  to  affect  the  interests  of  the  company  unfavorably, 
the  same  as  they  might  to  defray  the  expense  of  litigation  in 
court.19     Lord    Campbell  said :    "  Our  determination    rests    upon 

18  Great  Western  Railw.  v.  Birm.  &  Oxford  Junction  Railw.,  5  Railw.  C.  241. 
The  Lord  Chancellor  says,  that  to  nullify,  in  a  court  of  equity,  all  contracts  made 
upon  the  faith  of  obtaining  the  consent  of  the  legislature  to  carry  them  into  effect, 
would  be  "  to  nullify  many  family  agreements,  and  all  contracts  by  persons  pro- 
jecting new  companies."  Shrewsbury  &  Birm.  Railw.  v.  London  &  N.  W.  Railw., 
4  De  G.,  M.  &  G.  115 ;  s.  c.  9  Eng.  L.  &  Eq.  394.  And  it  has  been  held,  in  an 
important  case  in  the  Circuit  Court  of  the  United  States,  Columbus,  Piqua.  & 
Ind.  Railw.  v.  Indianapolis  &  Bellefontaine  Railw.,  5  McLean,  450,  that  an  agree- 
ment between  two  railway  companies  to  build  their  roads  from  certain  cities,  to 
meet  at  a  given  place,  and  that  the  charges  for  transportation  shall  be  regulated 
by  both  companies,  and  also  the  meeting  of  the  cars,  and  the  through  freight 
cars,  is  a  valid  contract,  and  will  be  enforced  by  injunction  in  equity.  That  to 
fix  the  charge  for  the  transportation  of  passengers  and  freight,  is  the  exercise  of 
the  corporate  franchise  of  each  company,  and  an  agreement  that  both  companies 
shall  regulate  this  is  no  abandonment  or  transfer  of  the  franchise  of  either. 

19  Reg.  v.  Commissioners  of  Norfolk,  15  Q.  B.  549.  The  ground  upon  which 
the  decisions  in  England  and  America,  which  hold  the  franchises  of  corporations 
not  to  be  assignable  except  by  consent  of  the  legislature,  rest,  is  mainly  the  same 
as  that  upon  which  it  has  been  held  in  this  country,  that  such  franchises  are  be- 
yond legislative  control,  namely,  that  the  charter  constitutes  a  contract  between 
the  sovereignty  and  the  corporation,  on  the  one  part,  for  the  grant  of  certain 
privileges  and  immunities,  and  upon  the  other  for  the  performance  of  certain 
duties  and  functions,  which  are  deemed  an  equivalent  or  consideration.  And  this 
feature  is  of  peculiar  force  in  the  case  of  that  class  of  corporations  upon  which  the 
legislature  have  conferred  important  public  duties  and  functions,  as  railways  and 
banks,  and  some  others.  The  state  confers  upon  a  railway  some  of  its  most  es- 
sential powers  of  sovereignty,  that  of  eminent  domain,  and  of  a  virtual  monopoly 
in  transportation  of  freight  and  passengers,  and  in  return  therefor  stipulates  for 
the  faithful  performance  of  these  duties  by  the  corporation.  The  corporation 
have  no  more  right,  in  equity  and  justice,  to  transfer  their  obligations  to  other 
companies,  or  to  natural  persons,  than  the  state  have  to  withdraw  them  alto- 
gether.    Either  would  be  regarded  as  an  abuse  of  the  powers  conferred,  or  an 

[*592] 


622  ARRANGEMENTS  BETWEEN  COMPANIES.        PART  VI. 

the  ground  that  this  opposition  was  clearly  bona  fide,  and  clearly 
prudent." 

8.  In  a  case,  in  Vice-Chancellor  Wood's  court,20  the  defend- 
ants entered  into  an  agreement  to  purchase  plaintiff's  property, 
there  being  at  the  time  no  legislative  permission  either  to  buy 
or  sell  snch  property.  Subsequently  such  *  permission  was  ob- 
tained,  and  steps  taken  by  the  defendants,  under  the  act,  to  carry 
the  contract  into  effect,  but  they  ultimately  refused  to  complete  their 
purchase,  on  the  ground  that  the  original  agreement  was  not  under 
the  seal  of  the  corporation,  nor  signed  by  two  of  their  directors.  The 
plain  tills  then  filed  a  bill  for  specific  performance,  and  it  was  held, 
that  the  bill  must  be  dismissed,  on  the  ground  that  the  contract 
was  originally  ultra  vires,  not  being  made  dependent  upon  obtain- 
ing the  consent  of  the  legislature.  It  is  also  said,  that  the  contract 
would  not  be  binding  upon  the  company,  unless  made  under  their 
common  seal,  that  being  required  in  the  defendants'  special  act, 
and  if  it  were  binding,  that  mandamus  is  the  more  appropriate 
remedy. 

9.  A  railway  company  cannot  acquire  the  franchise,  so  as  to 
be  bound  to  perform  the  duty  of  an  existing  ferry,  without  the 
authority  of  the  legislature,  given  either  expressly,  or  by  neces- 
sary implication.21 

10.  And  the  grant  to  a  railway  company,  having  its  terminus 
at  the  bank  of  the  river  Hudson,  opposite  the  city  of  Albany,  of 
power  to  connect  its  terminus  upon  one  side  of  the  river,  with  a 
depot  upon  the  opposite  bank  ;  though  it  does,  by  implication, 
give  the  right  to  establish  a  ferry,  does  not  make  it  a  part  of  the 
railway,  so  that  passengers  crossing  the  river  may  be  regarded 
as  carried  under  the  general  railway  franchise. 

11.  And  where  the  grant  of  such  a  ferry  was  restricted,  by 
express  condition,  to  the  transportation  of  freight  and  persons 

impairing  of  the  just  obligation  of  the  contract  resulting  from  the  grant,  and  its 
acceptance. 

80  Leominster  Canal  Co.  v.  Shrewsbury  &  Hereford  Railw.,  3  Kay  &  J.  654; 
s.  C.  2(J  Law  Times,  3 12.  The  learned  judge  concludes  his  opinion  in  this  case 
in  a  manner  very  creditable  to  his  sense  of  fair  dealing  and  good  faith  in  the 
conduct  of  railway  directors:  "  I  cannot,  however,  but  feel  that  solicitors  acting 
for  railway  companies,  like  that  of  the  defendants,  must  be  in  a  most  painful  posi- 
tion when  they  are  unable  to  rely  (as  here  they  cannot)  upon  the  good  faith 
or  even  the  common  honesty  of  directors." 

"   Battle,  J.,  in  State  v.  Wilmington  &  Manch.  Railw.,  Busbee,  234. 

[*o'j:J] 


§143. 


WHAT   CONTRACTS   MUST   BE   UNDER   SEAL. 


623 


carried  by  the  railway,  and  their  servants  and  employe's,  it  was 
held  that  the  company,  by  constantly  carrying  other  persons  gra- 
tuitously across  their  ferry,  were  guilty  of  an  infringement  of  the 
franchise  of  a  pre-existing  ferry,  the  same  as  if  such  persons  were 
carried  for  toll.22 

12.  And  the  grant  in  express  terms  of  a  ferry  as  a  portion  of 
the  line  of  a  railway,  will  not  empower  the  railway  company  to 
use  the  ferry  for  any  other  purpose  than  the  transportation  of  the 
freight  and  passengers  of  the  company.23 

13.  Legislative  confirmation  of  a  railway  and  of  its  location  will 
not  exonerate  the  company  from  responsibility  for  injuries  to 
public  or  private  rights,  caused  by  the  manner  in  which  it  had 
constructed  or  was  maintaining  part  of  its  road  at  the  time  of 
such  confirmation.24 


•"SECTION    II. 


Necessity  of  Contracts  of  Corporations  being  under  Seal. 


1.  The  English  courts  manifest  great  reluc- 
tance to  abandon  the  former  rule  of  law 
on  this  subject. 

n.  2.  Extended  review  of  the  English  and  some 
of  the  American  cases. 


2.  Reference  to  later  decisions. 

3.  What  amounts   to   a   seal,   according   to 

modern  use. 


§113.  1.  The  apparent  hesitation  among  the  English  courts 
and  text-writers 1  to  accept  the  acknowledged  rule  of  the  Ameri- 
can courts,  that  a  corporation  may  as  well  contract,  by  mere 
words,  without  writing,  or  by  implication  of  law,  or  by  vote,  or  by 
writing,  without  seal,  as  a  natural  person  ;  in  short,  that  in  the 
case  of  a  contract,  by  a  corporation,  a  seal  is  of  no  more  neces- 
sity or  significance  than  in  the  case  of  a  contract  by  a  natural 
person,  would  seem  to  justify  some  reference  here  to  the  present 
state  of  the  English  law  upon  the  subject.2 


22  Aikin  v.  The  Western  Railvv.,  20  New  York,  370. 

23  Fitch  v.  N.  H.,  N.  L.  &  Stonington  Railw.  Co.,  30  Conn.  38. 

24  Salem  v.  The  Eastern  Railw.,  98  Mass.  431. 

1  Hodges  on  Railways,  59,  60,  61,  and  notes. 

2  It  would  seem  a  very  obvious  view  of  the  question,  that  if  a  seal  is  not,  as 
was  at  one  time  claimed,  indispensable  to  the  authentication  of  a  corporate  con- 

[*594] 


i *. -J  |  ARRANGEMENTS    BETWEEN    COMPANIES.  PART  VI. 

*  2.  The  English  courts  in  many  comparatively  recent  cases  seem 
to  have  applied  the  general  rule  of  presumption,  by  which  the  con- 

tract,  if,  in  short,  it  can  be  dispensed  with  in  any  case,  it  becomes  merely  a 
matter  of  reason  and  discretion,  or  more  properly,  perhaps,  of  intention  and 
convenience,  in  order  to  show  the  definite  act  of  the  company,  and  when  it  shall 
be  required,  or  when  a  contract  shall  be  said  to  be  complete  without  it,  is  rather 
a  question  of  usage  than  an  unbending  rule  of  law.  Beverley  v.  Lincoln  Gas 
Light  &  (tike  Co.,  6  Ail.  &  hill.  829,  is  the  case  of  gas-meters  ordered  for  the 
use  of  the  company  by  one  of  the  committee,  taken  on  trial,  and  not  returned 
in  a  reasonable  time,  and  the  company  held  liable.  This  is  the  earliest  case  in 
tlic  English  books  where  the  courts  in  that  country  made  any  formal  departure 
from  the  old  rule,  and  it  was  here  held,  that  a  corporation  aggregate  is  liable  in 
assumpsit  for  goods  sold  and  delivered.  Patteson,  J.,  refers  to  the  American 
authorities  upon  the  subject,  and  says:  "It  is  well  known  that  the  ancient  rule 
of  the  common  law,  that  a  corporation  aggregate  could  speak  and  act  only  by 
its  common  seal,  has  been  almost  entirely  superseded,  in  practice,  by  the  courts 
of  the  United  States."  And  after  stating  the  greater  facilities  here  for  advance- 
ment in  jurisprudence,  the  learned  judge  enters  a  formal  disclaimer  against  "  the 
right  or  the  wish  to  innovate  on  the  law  upon  any  ground  of  inconvenience,  how- 
ever strongly  made  out;"  "but  when  we  have,"  says  the  learned  judge,  "to 
deal  with  a  rule  established  in  a  very  different  state  of  society,  at  a  time  when 
corporations  were  comparatively  few  in  number,  and  upon  which  it  was  very 
early  found  necessary  to  ingraft  many  exceptions,  we  think  we  are  justified  in 
treating  it  with  some  degree  of  strictness,  and  are  called  upon  not  to  recede  from 
the  principle  of  any  relaxation  in  it,  which  we  find  to  have  been  established  by 
previous  decisions."  And  this  seems  to  form  the  basis  of  the  subsequent  de- 
cisions of  the  English  courts  upon  the  subject.  The  decisions  have  evinced  an 
effort  to  preserve  the  rule,  and  at  the  same  time  to  invent  and  ingraft  such  a 
number  of  exceptions  upon  it  as  really  to  meet  all  the  inconvenience  or  absurdity 
which  could  fairly  be  objected  against  the  old  rule.  But  in  settling  the  excep- 
tions, the  decisions  have  not  always  commended  themselves  as  consistent  either 
with  reason  or  with  each  other ;  thus  affording  another  striking  illustration  of 
the  folly  of  attempting  to  maintain  an  absurd  rule,  by  multiplying  exceptions, 
every  one  of  which  was  based  upon  a  principle  of  reason,  which,  if  carried  to  its 
legitimate  results,  would  subvert  the  rule  itself.  This  was  in  1837,  in  the  King's 
Bench,  and  established  the  exception  to  the  old  rule  of  executed  contracts  for  goods 
sold  and  used  by  the  company  in  the  business  for  which  it  was  created.  The  next 
year  the  same  court  held,  that  a  corporation  might  also  maintain  an  action  upon 
an  executory  contract  not  under  seal.  Church  v.  The  Imperial  Gas-Light  &  Coke 
I  0  .  6  Ad.  &  Ell.  81G.  This  was  upon  a  contract  to  take  gas  of  the  company, 
which  the  defendant  below  declined  to  receive.  In  1843  a  case  arose  in  the 
Common  Pleas,  Fishmongers'  Co.  v.  Robertson,  5  M.  &  G.  131.  This  was  an 
action  upon  a  contract  to  pay  the  plaintiffs  1,000Z.  to  withdraw  their  opposition 
to  a  bill  in  parliament,  and  to  promote  its  passage  into  a  law,  the  parties  being 
mutually  interested  in  the  same,  and  alleging  performance  of  the  contract  on  the 
part  of  the  plaintiffs.  The  subject  was  very  much  considered,  and  an  elaborate 
opinion  delivered  by  Tindal,  C.  J.,  and  it  was  decided,  that  the  contract  having 
[*595] 


§  143.  WHAT    CONTRACTS    MUST    BE    UNDER   SEAL.  625 

*  natural  persons  is  to  be  judged  of,  to  corporations.  Thus3  it  was 
held,   that  where  a  company  has   stood  by  and  seen  works  per- 

been  executed  on  the  part  of  the  corporation,  and  the  defendants  having  received 
the  full  consideration,  were  bound  by  the  contract,  and  that  the  contract  was  not 
void  as  against  public  policy.  See  also  Arnold  v.  The  Mayor  of  Poole,  4  Man. 
&  Gr.  800  (1842),  to  the  same  effect,  where  it  is  held,  that  no  municipal  corpora- 
tion but  that  of  London  can  appoint  an  attorney  except  under  the  corporate  seal. 
Mayor  of  Ludlow  v.  Charlton,  6  M.  &  W.  815  (1840).  But  the  Court  of  Q.  B., 
in  1846  (Sanders  v.  St.  Neot's  Union,  8  Q.  B.  810),  held,  that  if  work  be  done 
for  a  corporation,  and  adopted  by  them  for  purposes  connected  with  the  incorpo- 
ration, although  not  under  seal,  they  are  liable  for  it.  The  case  of  the  Governor 
&  Company  of  Copper  Miners  v.  Fox,  16  Q.  B.  229  (1851),  holds  that  the  plain- 
tiffs could  not  sue  upon  a  mutual  contract,  because  the  plaintiffs1  portion  of  it, 
not  being  under  seal,  and  being  for  the  delivery  of  iron  rails,  and  the  plaintiffs 
being  incorporated  for  dealing  in  copper,  not  coming  within  the  proper  business 
of  the  company,  as  a  trading  company,  they  were  not  bound  by  it,  and  by  con- 
sequence the  defendants  were  not.  This  case  admits  the  exception  from  the  old 
rule  of  all  contracts  pertaining  to  the  proper  business  of  the  incorporation,  and 
then  attempts  a  distinction  between  dealing  in  iron  and  copper!  —  a  distinction 
which,  if  it  be  of  any  force,  would  show  that  the  contract,  being  ultra  vires, 
would  not  bind  the  company  in  any  form.  The  next  case  in  the  order  of  time, 
(Homersham  v.  Wolverhampton  Waterworks,  6  Exch.  193;  s.  c.  6  Railw.  C, 
790,  ante,  §  113),  is  for  extra  work,  under  a  contract,  which  was  done  in  express 
violation  of  the  provisions  of  the  general  contract,  in  regard  to  extra  work,  and 
was  not  authorized,  in  the  manner  required  in  relation  to  contracts,  by  the  com- 
pany's charter.  It  seems  to  have  been  correctly  enough  decided,  upon  either 
ground,  that  no  recovery  could  be  had.  Ante,  §  113,  and  cases  cited.  Lamprell 
v.  Billericay  Union,  3  Exch.  283  (1849).  But  Cope  v.  Thames  Haven  Dock  & 
Railw.  Co.,  3  Exch.  841,  seems  to  be  an  express  decision  affirming  the  general 
necessity  of  the  corporate  seal  to  bind  the  company  (1849).  So  also  Diggle  v. 
The  London  &  Blackwall  Railw.,  5  Exch.  442,  is  of  the  same  character,  being 
for  extra  work  performed  in  express  violation  of  the  general  contract ;  and  there 
are  some  other  cases  of  this  kind  in  the  English  Reports.  But  the  next  case  in 
the  order  of  time,  involving  the  general  question,  is  Finlay  v.  Bristol  &  Exeter 
Railw.,  7  Exch.  409 ;  s.  c.  9  Eng.  L.  &  Eq.  483,  and  here  it  was  held,  that 
although  a  corporation  was  liable  for  use  and  occupation,  on  a  parole  demise,  it 
is  only  liable  for  the  actual  occupation,  and  a  continuous  occupation,  for  several 
years,  will  not  render  the  corporation  tenants  from  year  to  year.  In  Clark  v. 
The  Guardians  of  the  Cuckfield  Union,  1  B.  C.  C.  81  ;  s.  c.  11  Eng.  L.  &  Eq. 
442,  the  cases  are  all  elaborately  reviewed  by  Wightman,  J.,  and  the  conclusion 
arrived  at,  that  whenever  the  purposes  for  which  a  corporation  is  created  render 
it  necessary  that  work  should  be  done,  or  goods  supplied,  to  carry  such  purposes 
into  effect,  and  such  work  is  done,  or  such  goods  supplied,  and  accepted  by  the 


3  Hill  v.  South  Staffordshire  Railw.  Co.,  2  De  G.,  J.  &  S.  230 ;  11  Jur.  (N.  S.) 
192. 

vol.  i.  40  [*596] 


626  ARRANGEMENTS    BETWEEN    COMPANIES.  PART  VI. 

formed,  *  it  will  be  held  to  have  assented  to  them,  as  much  as  if 
it   had   been  a  natural  person.     But  the  principle  that  a  company 

corporation,  and  the  whole  consideration  lor  payment  is  executed,  the  corpo- 
ration eannot  refuse  to  pay,  upon  the  ground  that  the  contract  was  not  under 
seal ;  and  the  case  of  Lamprell  v.  Billericay  Union,  3  Exch.  283,  is  seriousl) 
questioned.  In  Lowe  v.  The  London  &  N.  W.  Railw.,  17  Jur.  375;  s.  c.  14 
Eng.  L-  &  Eq.  IS,  it  is  held,  where  a  railway  have  taken  possession  of  land,  and 
occupied  it,  by  the  permission  of  the  owner,  for  the  purposes  of  their  incorpora- 
tion, that  they  are  liable  to  be  sued  in  assumpsit,  for  use  and  occupation,  not- 
withstanding they  have  not  entered  into  a  contract  under  their  common  seal. 
But  in  the  case  of  Smart  v.  The  Guardians  of  the  Poor  of  West  Ham  Union, 
10  Exch.  867 ;  s.  c.  30  Eng.  L.  &  Eq.  560  (1855),  the  question  came  before  the 
(  ourt  of  Exchequer,  and  the  judges  manifested  a  firm  determination  to  adhere 
strictly  to  the  old  rule.  Parke,  B.,  says:  "With  respect  to  the  case  of  Clark 
v.  The  Guardians  of  the  Cuckfield  Union,  I  must  say  that  I  am  not  satisfied  with 
the  observations  of  my  brother  Wightman,  for  if  that  case  be  correctly  decided, 
the  effect  would  be  to  overrule  several  previous  decisions  of  this  court."  And 
Alderson,  B.,  says:  "  We  must  adhere  to  former  decisions,  till  overruled  by  a 
court  of  error."  But  in  the  case  of  the  Australian  Royal  Mail  Co.  v.  Marzetti, 
in  June,  1855,  in  the  Court  of  Exchequer,  11  Exch.  228;  Pollock,  C.  B.,  says, 
in  regard  to  a  contract  not  under  seal :  "  The  principle  applicable  to  corporations 
is,  that  in  respect  of  small  matters,  where  it  would  be  absurd  and  inconvenient 
to  require  them  to  put  their  seals  to  contracts,  in  those  cases  they  may  contract 
without  seal,"  also  "  in  respect  of  matters  for  which  it  was  created.'''' —  "  These 
principles,"  adds  the  learned  chief  baron,  "are  founded  on  justice,  public  con- 
venience, and  sound  sense,"  and  he  might  have  said,  perhaps,  with  equal  pro- 
priety, will  finally  be  found  virtually  to  include  all  the  legitimate  business  of 
corporations.  Eor  it  is  impossible  to  make  any  sensible  distinction,  between  the 
proper  business  of  a  corporation,  as  appears  upon  the  face  of  their  charter,  and 
that  which  is  purely  incidental  or  ancillary  to  the  proper  business  of  the  corpora- 
tion. And  this  is  conceded  by  Lord  Campbell,  in  the  Governor  &  Company  of 
(  tapper  Miners  v.  Fox,  supra,  when  refining  upon  the  very  elemental  distinction 
between  a  trade  in  iron  and  copper.  And  if  we  allow  corporations  to  bind  them- 
selves, without  seal,  in  all  the  business  created  by  their  charter,  and  in  all  that  is 
incidental  thereto,  we  shall  have  few  cases  remaining.  The  only  remaining  case, 
directly  upon  the  subject,  which  has  yet  reached  us,  is  that  of  Henderson  v.  The 
Australian  Royal  Mail  Steam  Nav.  Co.,  5  El.  &  Bl.  409;  s.  c.  32  Eng.  L.  & 
Eq.  167  (June,  1855),  where  the  defendants,  a  company  incorporated  for  the 
purpose  of  carrying  the  mails,  passengers,  and  cargo,  between  Great  Britain 
and  the  Cape  of  Good  Hope  and  Australia,  and  for  that  purpose  to  construct 
and  maintain  steam  and  other  vessels,  and  to  do  all  such  matters  as  might  be  inci- 
dental  to  such  undertaking,  entered  into  a  contract  with  the  plaintiff  to  go  out  to 
Sydney  and  bring  home  a  sloop  belonging  to  the  company  which  was  unseaworthy, 
and  it  was  held,  that  the  action  might  be  maintained,  for  the  service  performed 
under  the  contract,  although  the  contract  was  not  under  seal.  The  opinion  of 
the  judges  at  length  wdl  afford  the  safest  commentary  upon  the  present  state  of 
the  English  law  upon  the  subject,  and  will  present  a  very  instructive  contrast 

[*597] 


§  143.  WHAT    CONTRACTS    MUST    BE    UNDER    SEAL.  627 

*  is  not  bound  by  a  deed  of  agreement  entered  into  by  its  direc- 
tors or  trustees  for  and  on  behalf  of  the  company,  which  is  not 

with  the  quiet,  and  perfectly  settled,  and  satisfactory  state  of  the  law  here  upon 
the  same  subject,  from  having,  as  we  believe,  more  wisely,  abandoned  a  rule 
which  grew  out  of  an  uncultivated  state  of  society,  and  which  had  a  very  limited 
application,  when  adopted,  and  which  is  found,  in  practice,  utterly  inconsistent 
with  the  views  of  business  men,  in  all  commercial  countries,  at  the  present  day. 
Wightman,  J.  :  "I  am  of  opinion  that  our  judgment  should  be  for  the  plaintiff. 
This  is  an  action  against  the  Australian  Royal  Mail  Steam  Navigation  Company, 
which  is  a  coliipany  constituted  expressly  for  the  purpose  of  carrying  on  a  trade 
by  vessels  ;  it  is  incorporated  '  for  the  purpose  of  undertaking  the  establishment 
and  maintenance  of  a  communication,  by  means  of  steam  navigation,  or  other- 
wise, and  the  carrying  of  the  royal  mails,  passengers,  and  cargo,  between  Great 
Britain  and  Ireland,  and  the  Cape  of  Good  Hope  and  Australasia,'  and  for  that 
purpose  it  must  maintain  and  employ  many  vessels.  Can  it  be  doubted  that 
amongst  the  ordinary  operations  of  the  company  there  would  arise  a  necessity 
for  employing  persons  to  navigate  or  bring  home  vessels  which  met  with  acci- 
dents abroad?  The  words  of  the  contract,  as  set  out  in  the  declaration,  show 
an  employment  directly  within  the  scope  of  the  objects  for  which  the  company 
was  incorporated. 

"It  is  true  there  is  a  conflict  of  authorities  which  it  is  difficult  to  reconcile. 
Two  or  three  cases  in  the  Court  of  Exchequer,  Lamprell  v.  The  Billericay 
Union,  3  Exch.  283,  and  the  Mayor  of  Ludlow  v.  Charlton,  6  M.  &  W.  815,  and 
Arnold  v.  The  Mayor  of  Poole,  4  Man.  &  Gr.  860,  in  the  Court  of  Common 
Pleas,  appear  to  militate  against  the  view  taken  by  this  court.  But  those  deci- 
sions proceeded  upon  a  principle  adapted  to  municipal  corporations,  which  are 
created  for  other  objects  than  trade ;  and  the  Court  of  Exchequer  applied  that 
principle  to  modern  trading  companies,  which  are  of  an  entirely  different  char- 
acter. 

"  In  early  times  there  was  a  great  relaxation  of  the  rule  which  required  that 
the  contracts  of  corporations  should  be  under  seal,  and  that  relaxation  has  been 
gradually  extended.  At  first  the  relaxation  was  made  only  in  those  cases  men- 
tioned by  Mr.  Lush,  when  the  subject-matter  of  the  contract  was  of  small  moment 
and  frequent  occurrence,  which  in  the  case  of  municipal  corporations  might  be 
the  only  exceptions  necessary.  But  in  the  later  cases  there  was  a  further  relax- 
ation, especially  in  the  case  of  corporations  created  by  charter  for  trading  pur- 
poses, and  other  like  corporations.  The  general  result  of  the  cases  mentioned 
in  Clark  v.  The  Guardians  of  the  Cuckfield  Union,  16  Jur,  686;  s.  c.  11  Eng. 
L.  &  Eq.  442,  is,  that  in  the  case  of  trading  corporations,  wherever  the  contract 
relates  and  is  essential  to  the  purpose  for  which  the  company  was  incorpo- 
rated, it  may  be  enforced,  though  not  under  seal.  In  deciding  that  case,  I 
reviewed  all  the  cases,  and  adhere  to  the  opinion  which  I  then  expressed,  that 
in  such  a  case  as  the  present,  where  the  contract  is  essentially  necessary  to  the 
objects  of  the  company,  and  directly  within  the  scope  of  their  charter,  it  may  be 
enforced,  though  made  by  parol." 

Erie,  J. :  "I  am  of  opinion  that  the  contract  is  binding  on  the  corporation, 
though  not  under  seal,  on  the  ground  that  it  is  directly  within  the  scope  of  the 

[*598] 


628  ARRANGEMENTS   BETWEEN    COMPANIES.  PART  VI. 

*  under  the  seal  of  the  company,4  is  still  adhered  to  by  the  Eng- 
lish and  Irish  courts.      And  to  this  extent  the  rule  may  not  be 

company's  charter.  The  authorities  are  apparently  conflicting,  but  none  conflict 
with  the  principle  laid  down  by  my  brother  Wightman,  in  which  I  concur.  In 
Beverley  v.  The  Lincoln  Gas  Light  and  Coke  Company,  6  Ad.  &  Ell.  829,  the 
supply  of  gas  was  directly  incident  to  the  purpose  for  which  the  company  was 
incorporated.  So  also  in  Church  v.  The  Imperial  Gas  Light  &  Coke  Company, 
6  A<1.  &  Ell.  846;  and  in  Sanders  v.  The  Guardians  of  the  St.  Neot's  Union, 
8  Q.  B.  810;  and  in  the  elaborate  judgment  of  Wightman,  J.,  in  Clark  v.  The 
Guardians  of  the  Cuckfield  Union,  16  Jur.  686;  s.  c.  11  Eng.  L.  &  Eq.  442,  it 
was  assumed  that  the  matter  was  within  the  scope  of  the  company's  charter. 

"The  judgment  delivered  by  Lord  Campbell,  C.  J.,  for  this  court,  in  the 
Copper  Miners'  Company  v..  Fox,  16  Q.  B.  229;  s.  c.  3  Eng.  L.  &  Eq.  420, 
enunciated  the  principle.  The  principle  affirmed  by  this  series  of  cases  does 
nut  conflict  with  the  two  leading  cases  in  the  Court  of  Exchequer,  which  were 
cases  of  municipal  corporations.  Neither  building,  which  was  the  matter  in  the 
Mayor  of  Ludlow  v.  Charlton,  6  M.  &  W.  815,  nor  litigation,  which  was  the 
matter  in  Arnold  v.  The  Mayor  of  Poole,  4  Man.  &  Gr.  860,  was  incidental 
directly  to  the  purposes  for  which  the  corporations  of  those  towns  were  con- 
stituted. 

••  The  other  cases  to  which  I  adverted  were  corporations  for  trading  purposes 
and  it  is  difficult  to  reconcile  them.  In  Lamprell  v.  The  Guardians  of  the  Bil- 
lericay  Union,  3  Exch.  283,  the  action  related  to  the  building  a  workhouse,  with 
which  the  defendants  were,  as  a  corporation,  connected.  Diggle  v.  The  London 
&  Blackwall  Railw.,  5  Exch.  442,  is  that  which  to  the  greatest  degree  conflicts, 
unless  it  can  be  distinguished  or  explained  on  the  ground  that  it  was  a  unique 
contract ;  if  it  cannot,  I  do  not  agree  to  it ;  and  in  this  conflict  of  authorities  I 
adhere  to  those  who  oppose  it. 

"  The  notion  that  a  set  of  contracts  shall  have  their  validity  depending  on  the 
frequency  and  insignificancy  of  the  subject-matter  is  of  such  extreme  pernicious- 
ness,  that  I  do  not  think  that  it  can  be  adhered  to,  and  must  be  considered  as 
applicable  only  to  municipal  corporations.  It  has  been  so  held  as  to  contracts 
for  servants,  but  I  do  not  think  that  it  was  meant  to  be  said  that  the  contract  was 
valid  if  the  matter  was  of  small  importance,  and  invalid  if  the  matter  was  of  great 
importance;  and  indeed,  in  the  case  of  trading  companies,  which  it  is  allowed 
may  draw  and  accept  bills  of  exchange  not  under  seal,  it  is  obvious  that  insig- 
nificancy is  no  element ;  neither  is  the  frequency  or  rarity  of  the  contract  an 
element.  The  nature  of  the  contract  and  the  subject-matter  of  it  must  be  the 
principle  which  governs  the  question  whether  it  is  valid,  though  not  under  seal. 
It  would  be  pernicious  to  the  law  of  the  country,  that  under  the  semblance  of  a 
contract  parties  should  obtain  goods  or  services,  and  not  be  compellable  to  pay 
for  I  hem.  The  Court  of  Exchequer  had  an  opinion  that  it  would  be  important 
that  the  rule  should  be  certain ;  but  their  resort  to  the  rule,  that  the  contract  in 


4  McArdle  v.  Irish  Iodine  Co.,  15  Ir.  Com.  Law,  146. 
[*599] 


§  143.  WHAT    CONTRACTS    MUST    BE    UNDER    SEAL.  629 

*  objectionable.  But  there  are  many  American  cases,  where  the 
construction  in  favor  of  the  responsibility  of  the  company  for  the 

all  cases,  with  the  above-mentioned  exceptions,  should  be  under  seal,  cannot  be 
acted  upon." 

Compton,  J.  "  I  concur  in  the  principle  now  adopted  by  my  brothers  Wight- 
man  and  Erie.  It  is  desirable  that  in  the  case  of  trading  corporations  there 
should  be  a  relaxation  of  the  rule,  that  the  contract  of  corporations  should  be 
under  seal,  where  the  contract  is  for  the  purpose  of  carrying  on  their  trade. 
That  principle  was  supported  in  the  Copper  Miners  Company  v.  Fox,  16  Q.  B. 
229 ;  s.  c.  3  Eng.  L.  &  Eq.  420,  and  Clark  v.  The  Guardians  of  the  Cuckfield 
Union,  16  Jur.  686;  s.  c.  11  Eng.  L.  &  Eq.  442;  and  it  is  an  important  prin- 
ciple, and  may  be  the  governing  principle  in  these  cases  ;  and  but  for  the  two 
cases  in  the  Court  of  Exchequer,  I  should  think  that  the  appointment  of  the 
plaintiff  in  this  case  did  not  require  a  seal.  I  cannot,  however,  distinguish  this 
from  Lamprell  v.  The  Guardians  of  the  Billericay  Union,  3  Exch.  283,  and 
Diggle  v.  The  London  &  Blackwall  Railw.  Company,  5  Exch.  442 ;  and  if  the 
judgment  of  the  court  depended  upon  me,  I  might  defer  to  them,  at  the  same 
time  wishing  the  other  principle  to  prevail.  I  cannot  disguise  from  myself  that 
we  are  deciding  against  the  cases  in  the  Court  of  Exchequer,  and  the  rule  which 
that  court  adopted.  But  I  agree  with  what  my  brothers  have  said  ;  and  I  will 
add,  that  those  cases  created  considerable  surprise  at  the  time." 

And  in  one  case,  Renter  v.  The  Electric  Telegraph  Co.,  6  El.  &  Bl.  346 
(May,  1856),  in  the  Court  of  Queen's  Bench,  the  defendants  had  made  a  con- 
tract, under  their  corporate  seal,  with  the  plaintiff,  to  transmit  all  his  messages, 
and  all  he  could  collect,  for  a  commission  not  exceeding  £500,  or  less  than  £300 
per  annum,  and  while  this  contract  was  in  existence,  the  chairman  of  the  com- 
pany entered  into  a  parol  agreement  with  the  plaintiff,  to  pay  him  at  the 
increased  rate  of  £50  percent,  in  consideration  of  the  plaintiff's  further  services 
in  collecting  public  intelligence  and  sending  it  by  the  company's  telegraph.  These 
additional  services  were  found  to  be  beneficial  to  the  company,  and  this  agree- 
ment was  entered  upon  the  minutes  of  the  company,  and  the  plaintiff  had 
received  £300  for  services  in  pursuance  of  it.  The  deed  of  settlement  provided, 
that  all  contracts,  where  the  consideration  exceeds  £50,  should  be  signed  by 
three  directors.  It  was  held,  that  the  parol  contract  having  been  acted  upon, 
and  ratified  by  the  company,  was  binding  upon  them.  De  Grave  v.  The  Mayor 
of  Monmouth,  is  a  case  of  ratification,  4  C.  &  P.  111.  And  in  Bill  v.  The  Da- 
renth  Valley  Railw.,  1H.&N.  305;  s.  c.  37  Eng.  L.  &  Eq.  539,  the  Court  of 
Exchequer  held,  that  one  who  had  served  the  company,  as  secretary,  might 
recover  compensation  for  his  services,  although  the  remuneration  to  be  paid  him 
had  not  been  fixed,  at  a  general  meeting  of  the  company,  as  required  by  the 
English  statute.  That  was  held  to  determine  the  duty  of  the  directors  towards 
the  company,  and  not  to  limit  the  liability  of  the  company  to  third  parties, 
which  is  the  view  taken  of  the  subject  here.  Noyes  v.  Rut.  &  Burling.  Railw., 
27  Vt.  110-113  ;  ante,  §  136,  n.  5.  But  it  has  been  held,  that  if  a  corporation 
contract  through  an  agent,  who  attaches  a  seal  to  his  execution  of  the  contract 
on  their  behalf,  it  thereby  becomes  the  deed  of  the  company,  although  the  seal 
was  not  their  common  seal,  and  an  action  of  assumpsit  cannot  be  maintained 

[*600] 


630  ARRANGEMENTS   BETWEEN    COMPANIES.  PART  VI. 

*  act  of  the  directors,  even  in  executing  a  contract  under  seal 
without  using  the  specific  seal  of  the  corporation,  is  more  favorable, 
the  directors  for  the  time  being  held  to  have  adopted  the  seal 
used  as  the  corporate  seal,  the  same  as  any  number  of  natural 
persons  may  adopt  the  same  seal.  But  this  latitude  of  construc- 
tion in  regard  to  the  seal  of  a  corporation  is  not  common  in  this 
country,  it  being  generally  held  indispensable  to  bind  the  com- 
pany by  deed  that  their  corporate  seal  should  be  used. 
3.  There  has  been  considerable  controversy,  first  and  last,  as 

upon  it.  Porter  v.  Androscoggin  &  Kennebec  Railw.,  37  Maine,  349.  But  it 
must  be  executed  in  the  name  of  the  company.  Sherman  v.  New  York  Central 
Railw.,  22  Barb.  239.  If,  in  an  action  of  assumpsit,  upon  a  contract,  purporting 
to  be  executed  by  a  railway  company,  the  company  claim  that  it  was  executed 
under  their  seal,  and  that  therefore  an  action  of  assumpsit  will  not  lie  upon  it, 
and  prevail,  upon  this  ground,  they  are  estopped  to  deny,  in  a  subsequent  action 
of  covenant,  upon  the  same  contract,  that  the  seal  attached  to  the  contract  is  the 
seal  of  the  company.  Philadelphia,  Wilmington  &  Baltimore  Railw.  v.  Howard, 
13  Howard,  307.  But  the  English  courts  do  not  hold  the  corporation  absolutely 
bound  by  contracts  under  their  common  seal,  thus  reducing  the  question  to  one 
of  authority,  in  fact,  to  enter  into  the  contract.  Shrewsbury  &  Birmingham 
Railw.  v.  London  &  N.  W.  Railw  ,  6  Ho.  Lds.  113.  In  The  London  Docks  Co. 
v.  Sinnott,  8  El.  &  Bl.  347  (Nov.  1857),  the  Court  of  King's  Bench  maintain 
the  general  rule  that  "corporations  aggregate  can  only  be  bound  by  contracts 
under  the  seal  of  the  corporation."  Lord  Campbell,  C.  J.,  in  giving  judgment, 
enumerates  the  following  exceptions  to  the  general  rule,  mercantile  contracts, 
contracts  with  customers,  and  such  as  do  not  admit  of  being  executed  under 
seal,  as  bills  of  exchange.  But  in  some  English  cases,  decided  since  the 
publication  of  the  second  edition  of  this  work,  it  seems  to  be  conceded  that 
corporations  may  be  as  much  bound  by  the  contracts  of  their  agents  as  natu- 
ral persons.  Thus  in  Wilson  v.  The  West  Hartlepool  Railw.  Co.,  34  Beav. 
187  ;  s.  c.  10  Jur.  (N.  S.)  1064,  it  was  held  that  when  a  company,  through 
their  directors,  hold  out  to  the  world  that  a  person  is  their  agent  for  a  partic- 
ular purpose,  they  cannot  afterwards  dispute  acts  done  by  him,  within  the  scope 
of  such  countenanced  agency.  And  accordingly  where  the  general  manager  of  a 
railway  company  had  in  several  instances  entered  into  contracts  for  the  sale  of  the 
company's  lands,  which  contracts  had  been  adopted  by  the  company,  and  he 
entered  into  a  contract  with  the  plaintiff  for  the  sale  to  him  of  a  portion  of  their 
land,  and  in  pursuance  of  the  terms  of  the  contract  the  company's  servants  laid 
down  a  branch  line  of  railway,  and  the  plaintiff  removed  machinery  and  other 
effects  to  the  land,  and  no  act  was  done  by  the  company  to  lead  the  plaintiff  to 
believe  that  the  contract  had  been  entered  into  without  authority;  but  they  sub- 
sequently repudiated  the  authority  of  the  manager  and  refused  to  convey  the 
land  to  the  plaintiff,  upon  bill  for  specific  performance ;  it  was  held  that  the  case 
fell  within  the  principle  of  the  London  &  Birmingham  Railw.  Co.  v.  Winter,  Cr. 
&  Ph.  57,  and  specific  performance  was  decreed. 

[*G01] 


144. 


DUTY    OF    COMPANIES    TO    PASSENGERS    AND    OTHERS. 


631 


to  what,  precisely,  amounted  to  a  seal.  The  generally  received 
opinion  upon  the  subject  seems  now  to  be,  that  a  mere  scroll  or  en- 
graved likeness  of  the  device  of  a  seal  will  not  answer  the  demands 
of  the  law.6  It  must  be  the  result  of  the  use  of  some  adhesive  or 
impressible  material.  It  was  at  one  time  restricted  to  the  use  of 
wax,  or  some  similar  material.  But  it  seems  now  to  be  regarded 
as  sufficient,  in  the  case  of  a  corporation,  if  the  impression  is 
stamped  into  the  substance  of  the  paper  on  which  the  seal  is  used.6 
There  is  a  great  deal  of  curious  learning  in  regard  to  seals,  much  of 
which  will  be  found  in  a  carefully  prepared  article  upon  the  subject, 
lately  published.7 


♦SECTION    III. 


Duty  of  the  respective  Companies  to  Passengers  and  Others. 


1.  Company  bound  to  keep  road  safe.    Act  of 

other  companies  no  excuse. 

2.  Some  cases  hold  that  passengers  can  only 

sue  the  company  carrying  them. 

3.  Passenger  carriers  bound  to  make  landing 

places  safe. 

4.  But  those  who  ride  upon  freight  trains,  by 

favor,  can  only  require  such  security  as 
is  usual  upon  such  trains. 

5.  Owners  of  all  property  bound  to  keep  it  in 

state,  not  to  expose  others  to  injury. 


6.  This  rule  extends  to  railways,  where  per- 

sons are  rightfully  upon  them, 
n.  3.   Cases,  as  to  the  necessity  of  privity  of 
contract  existing,  reviewed. 

7.  One  who  keeps  open  public  works  is  bound 

to  keep  them  safe  for  use. 

8.  Corporations  presumptively  responsible  to 

the  same  extent  as  natural  persons  in  the 
same  situation. 

9.  A  railway  company  drawing  the  cars  of  a 

connecting  road  over  its  own  line  is  re- 
sponsible as  a  common  carrier. 


§  144.  1.  A  public  company,  like  a  canal  or  railway,  who  are 
allowed  to  take  tolls,  owe  a  duty  to  the  public  to  remove  all  ob- 
structions in  the  canal  or  upon  the  railway,  although  not  caused 
by  themselves  or  their  servants,  but  by  those  who  are  lawfully  in 
the  use  of  the  canal  or  railway,  or  by  mere  strangers.1  Nor  can 
a  railway  company  excuse  themselves  from  liability  for  injury  to 
passengers  carried  over  any  part  of  their  road,  by  showing  that 


5  Bates  v.  Boston  &  N.  Y.  Central  Railw.,  10  Allen,  251. 

6  Hendee  v.  Pinkerton,  14  Allen,  381. 

7  1  Am.  Law  Review,  649. 

1  Parnaby  v.  Lancaster  Canal  Co.,  11  Ad.  &  Ell.  223 ;  and  Lancaster  Canal 
Co.  v.  Parnaby,  id.  230.     See  post,  §  145,  pi.  7,  8,  and  note. 

[*602] 


682  ARRANGEMENTS    BETWEEN    COMPANIES.  PART  VI. 

the  particular  neglect  was  that  of  a  servant  employed  and  paid 
by  a  connecting  road  as  a  switchman  at  the  junction  of  two  rail- 
way S." 

*  2.  But  it  was  held  that  a  passenger,  who  suffered  an  injury 
in  attempting  to  get  upon  the  cars  of  one  company  while  using 
the  road  of  another  company,  by  contract  witli  such  company, 
through  a  defect  in  the  construction  of  the  road  of  the  latter  com- 
pany, could  not  maintain  an  action  against  them,  there  being  no 
privity  of  contract  between  the  plaintiff  and  such  company  ;  the 
remedy  being  in  such  case  against  the  company  who  were  carry- 
ing the  plaintiff  as  a  passenger.3 

2  McElroy  v.  Nashua  &  Lowell  Railw.,  4  Cush.  400.  Shaw,  C.  J.,  here 
savs :  '"The  switch  in  question,  in  the  careless  and  negligent  management  of 
which  the  damage  occurred,  was  a  part  of  defendant's  road,  over  which  they 
must  necessarily  carry  all  their  passengers,  and  although  provided  for,  and 
attended  by  a  servant  of  the  Concord  company,  at  their  expense,  yet  it  was  still 
a"  part  of  the  Nashua  &  Lowell  Railroad,  and  it  was  within  the  scope-  of  their 
duty  to  see  that  the  switch  was  rightly  constructed,  and  attended,  and  managed, 
before  they  were  justified  in  carrying  passengers  over  it."  So  also  where  a  train 
of  another  company  and  through  its  own  fault,  ran  into  a  train  standing  upon  its 
own  track,  but  over  which  the  other  company  had  running  powers,  it  was  held  the 
company  owning  the  track  was  prima  facie  responsible  to  its  own  passengers 
thus  injured.  Ayles  v.  S.  E.  Railw.,  L.  R.  3  Exch.  146.  So  also  where  a 
company  grants  the  use  of  its  track  to  another  company  whereby  through  the 
fault  of  the  latter  company  its  own  passengers  are  injured,  the  first  company  is 
responsible.  Railway  Co.  v.  Barron,  5  Wallace,  90.  And  a  railway  passenger 
carrier  is  responsible  for  the  sufficiency  of  a  carriage  which  it  borrows  and  uses, 
to  the  same  extent  as  for  its  own.  Jetter  v.  N.  Y.  &  H.  Railw.,  39  N.  Y.  (2 
Keyes)  154. 

3  Murch  v.  The  Concord  Railw.,  9  Foster,  9;  Winterbottom  v.  Wright,  10 
M.  &  W.  109.  But  a  railway  company  owe  a  public  duty,  independent  of  all 
privity  of  contract,  to  keep  their  public  works  in  such  a  state  of  repair,  and  so 
watched  and  tended  as  to  insure  the  safety  of  all  who  are  lawfully  upon  them, 
either  by  their  direct  permission  or  mediately  through  contract  with  other  parties. 
Sawyer  v.  Rutland  &  Bur.  Railw.,  27  Vt.  377.  This  is  here  thus  stated  by 
Isham,  J.:  "That  duty  is  imposed  upon  the  defendants  at  common  law,  and 
it  arises  not  from  any  contract  of  the  parties,  but  from  the  acceptance 
of  their  charter,  and  from  the  character  of  the  services  they  have  assumed  to 
perform.  The  obligation  to  perform  that  duty  is  coextensive  with  the  lawful  use 
of  the  road,  and  is  required  as  a  matter  of  public  security  and  safety."  The 
same  principle  is  maintained  in  Smith  v.  New  York  and  Harlem  Railw.  Co.,  19 
N.  Y.  127,  where  it  was  decided  that  a  switch-tender,  employed  by  a  railway 
company  on  a  portion  of  its  road  upon  which  it  permits  another  company  to  run 
trains,  is  not  a  servant  of  the  latter;  and  an  engineer  of  the  latter,  injured  by 
the  negligence  of  such  switch-tender,  may  maintain  an  action  against  the  com- 

[*603] 


§  144.    DUTY  OF  COMPANIES  TO  PASSENGERS  AND  OTHERS.      633 

*  3.  And  while  the  cases  recognize  the  duty  in  such  companies 
as  carry  passengers,  either  upon  their  own  road  or  that  of  other 
companies,  by  permission  or  lease,  to  make  the  approaches  to  such 
road  safe,  at  all  points  where  freight  or  passengers  are  usually 

pany  employing  him.  But  where  animals  were  killed  by  the  train  of  one  com- 
pany, while  rightfully  upon  the  track  of  another  company,  it  was  held  that  the 
company  owning  the  road  was  responsible  for  the  damage.  Ind.  &  Madison 
Railw.  v.  Solomon,  23  Ind.  534.  So  an  apothecary,  who  sold  a  deadly  poison 
labelled  as  a  harmless  medicine,  was  held  directly  liable  to  all  persons  injured 
thereby,  in  consequence  of  the  false  label,  without  fault  on  their  part,  The 
liability  of  the  apothecary  arises,  not  out  of  any  contract  or  privity  between  him 
and  the  person  injured,  but  out  of  the  duty  which  the  law  imposes  upon  all,  to 
avoid  acts  in  their  nature  dangerous  to  the  lives  of  others.  He  is  liable,  there- 
fore, though  the  poisonous  drug,  with  such  label,  may  have  passed  through  many 
intermediate  sales  before  it  reaches  the  hands  of  the  person  injured,  upon  the 
same  principle  that  one  who  suffers  a  dangerous  animal  to  go  at  large,  is  respon- 
sible for  the  consequences.  Thomas  v.  Winchester,  2  Seld.  397.  In  Toomey  v. 
London,  Br.  &  South  C.  Railw.,  3  C.  B.  (N.  S.)  146,  the  plaintiff  mistook  a 
door  at  a  railway  station,  and  passing  through  it,  instead  of  another,  fell  down  a 
flight  of  steps  and  was  hurt.  There  was  a  light  over  the  door  which  he  intended 
to  pass  through,  and  a  printed  notice  showing  the  purpose  of  it.  There  was 
also  an  inscription  over  the  other,  but  no  light.  The  defendant  could  not  read. 
There  was  no  evidence  that  the  steps  were  more  than  ordinarily  dangerous. 
Held  that  the  company  were  not  liable.  But  a  railway  company  is  bound  to 
fence  a  station  so  that  the  public  may  not  be  misled,  by  seeing  a  place  unfenced, 
into  injuring  themselves  by  passing  that  way,  being  the  shortest  to  the  station. 
Where  a  passenger,  in  waiting  for  a  train,  had  gone  to  a  public  house  for  refresh- 
ments, the  porter  showing  him  the  way  with  his  lantern,  and  hearing  the  bell 
ring  started  out  for  the  station,  and  mistaking  the  light  of  the  engine  for  that  of 
the  station  crossed  an  open  space  direct,  and  was  injured  by  falling  into  a  hole 
three  feet  deep,  it  was  held  the  company  were  liable.  Burgess  v.  Great  Western 
Railw.,  6  C.  B.  (N.  S.)  923.  And  where  a  hackman  was  injured,  while  bring- 
ing a  passenger  to  the  station  of  a  railway  company,  by  stepping,  without  fault, 
into  a  cavity  in  the  platform,  the  company  being  in  fault  for  leaving  the  platform 
in  that  condition,  it  was  held  he  might  recover  of  the  company.  Tobin  v.  P.  S. 
&  P.  Railw.,  59  Me.  183.  And  the  fact  that  the  platform  was  within  the  limits  of 
the  highway  will  make  no  difference.  lb.  Nor  is  a  railway  company  liable  for 
an  injury  through  the  defect  of  a  crane  which  they  had  furnished  to  enable  the 
consignee  of  heavy  goods  to  unlade  them  from  the  cars,  although  such  crane  was 
known  to  them  to  be  inadequate  for  the  use  for  which  it  was  furnished,  the  party 
injured  having  been  employed  to  assist  the  consignee,  and  thereby  lost  his  life. 
The  case  is  put  upon  the  ground  of  want  of  privity,  it  being  admitted  that  the 
company  would,  in  such  case,  have  been  liable  to  the  party  to  whom  they  fur- 
nished the  crane,  if  he  or  his  ordinary  servants  had  sustained  injury  in  its  prudent 
and  lawful  use.  But  the  party  here  was  called  in  for  the  occasion.  Blakemore 
v.  The  Bristol  &  Exeter  Railw.,  8  El.  &  Bl.  1035.     It  seems  to  us  the  principle 

[*604] 


63  !  ARRANGEMENTS    BETWEEN    COMPANIES.  PART  VI. 

received,  this  duty  does  not  exist  in  regard  to  a  passenger  who,  out 
of  special  favor,  is  allowed  to  get  upon  the  train  at  an  unusual 
place  for  receiving  passengers.3  And  the  same  rule  has  been  ex- 
tended to  the  owners  of  docks,  who  keep  up  the  gangways  to  ships 
while  remaining  at  their  docks;  and  where  they  were  left  unsafe  by 
the  negligence  of  the  servants  having  charge  of  the  same,  and  one 
who  visited  a  ship  in  the  dock  on  business,  by  invitation  of  the 
officer,  was  injured  by  the  defect  in  the  gangway  without  his  own 
fault,  it  was  held  the  dock  owners  were  responsible.4 

4.  And  one  who,  by  favor,  is  allowed  to  travel  upon  a  freight- 
car,  contrary  to  the  usual  custom  of  the  company,  is  bound  to  be 
satisfied  with  such  facilities  and  accommodations  as  usually  exist 
upon  freight  trains,  as  railway  companies  are  not  to  be  regarded 
as  common  carriers  of  passengers  upon  their  freight  trains,  unless 
they  make  it  an  habitual  business.3 

5.  It  has  been  held  that  natural  persons,  who  assume  no  public 
*  duties,  are  liable,  if  they  suffer  their  property  to  remain  in  a 
dangerous  condition ;  as  that  the  occupier  of  land  is  bound  to 
fence  off  a  hole  or  area  upon  it  which  adjoins  or  is  so  close  to  a 
highway  that  it  may  be  dangerous  to  passers-by  if  left  unguarded.5 

6.  The  same  rule  has  often  been  extended  to  turnpike  roads6 
and  to  plank  roads,  where  the  statute  made  no  provision  for  the 
liability  of  the  company.7     And  the  same  rule  has  been  extended 

of  want  of  privity  is  here  misapplied.  This  is  a  clear  case  of  tort  and  not  of  con- 
tract, and  the  party  injured,  although  called  in  for  the  occasion,  was  pro  hac  vice 
a  servant  of  the  borrower,  and  it  was  the  same  as  if  the  borrower  himself  had 
been  injured.  The  furnishing  the  instrument  had  express  and  direct  reference  to 
its  use  by  the  consignee  and  his  servants,  extraordinary  as  well  as  ordinary. 

4  Smith  v.  London  &  St.  Katherine's  Dock  Co.,  Law.  Rep.  3  C.  P.  326. 

5  Barnes  v.  Ward,  2  Carr.  &  K.  661. 

6  Randall  v.  Cheshire  Turnpike  Co.,  6  N.  H.  147 ;  Townshend  v.  Susquehan- 
nahT.  Co.,  6  Johns.  90. 

7  Davis  v.  Lamoille  County  Plank  Road,  27  Vt.  602. 

In  the  case  of  Gibbs  v.  Trustees  of  the  Liverpool  Docks,  3  H.  &  N.  164; 
s.  c.  31  Law  Times,  22,  it  was  held,  in  the  Exchequer  Chamber,  reversing  the 
judgment  of  the  Court  of  Exchequer,  that  it  is  the  duty  of  those  receiving  tolls, 
whether  as  trustees  or  otherwise,  not  to  allow  a  dock  to  remain  open  for  public 
use,  when  they  know  that  it  is  in  such  a  state  that  it  cannot  be  used  without  dan- 
ger, citing  Parnaby  v.  Lancaster  Canal  Co.,  11  Ad.  &  Ell.  223,  and  distinguish- 
ing the  case  from  Metcalfe  v.  Hetherington,  11  Exch.  257.  But  it  seems  the 
party  is  never  liable  in  such  case,  unless  he  knew  or  might  have  known  of  the 
defect  but  for  his  own  neglect  of  duty.  McGinity  v.  Mayor  of  New  York,  5 
Duer,  674.     See  post,  n.  9. 

[*605] 


§  144.    DUTY  OF  COMPANIES  TO  PASSENGERS  AND  OTHERS.      635 

generally  to  railway  companies  in  this  country,  without  question, 
so  far  as  persons  are  rightfully  in  the  use  of  the  same.8  It  was 
held  that  the  owner  of  a  car  which  was  in  the  use  of  another 
party,  upon  a  railway,  by  contract  between  him  and  the  company 
and  which  suffered  an  injury  by  reason  of  the  bad  state  of  the  rail- 
way, might  maintain  an  action  against  the  company.8 

7.  This  principle  or  an  extension  of  it,  has  been  a  good  deal 
discussed  in  a  case  in  the  House  of  Lords.9  The  plantiffs,  *  a  cor- 
poration, were  empowered  by  act  of  parliament  to  make  and  main- 
tain docks  for  the  use  of  the  public,  and  to  take  tolls  from  persons 
using  them.  The  corporation  did  not,  nor  did  its  individual  mem- 
bers, derive  any  emolument  from  the  tolls,  but  was  bound  to  apply 
them  in  maintaining  the  docks,  and  in  paying  a  debt  contracted  in 

8  Cumberland  Valley  Railw.  v.  Hughs,  11  Perm.  St.  141. 

9  The  Mersey  Docks  &  Harbor  Board  v.  Penhallow,  Law  Rep.,  1  Ho.  Lds.  93 ; 
s.  c.  12  Jur.  (N.  S.)  571.  The  recent  cases  bearing  upon  the  general  question 
of  the  responsibility  of  one  party  for  negligence  in  his  own  business,  which  inci- 
dentally operates  to  produce  injury  to  another,  and  which  are  here  discussed  by 
court  or  counsel,  are  the  following:  Metcalfe  v.  Hetherington,  5  H.  &  N.  719; 
Coe  v.  Wise,  10  Jur.  (N.  S.)  1019 ;  Holliday  v.  St.  Leonard's,  Shoreditch,  8 
Jur.  (N.  S.)  79;  s.  c.  11  C.  B.  (N.  S.)  192;  Pickard  v.  Smith,  10  C.  B. 
(N.  S.)  470 ;  Southampton  &  I.  Bridge  Co.  v.  The  Local  Board  of  Health,  8 
Ellis  &  Bl.  801 ;  Ruck  v.  Williams,  3  H.  &  N.  308;  Whitehouse  v.  Fellowes,  10 
C.  B.  (N.  S.)  765  ;  Brownlow  v.  The  Metropolitan  Board,  8  Jur.  (N.  S.)  891 ; 
s.  c.  13  C.  B.  (N.  S.)  768;  Jones  v.  The  Mersey  Board,  11  Jur.  (N.  S.)  746. 
There  is  obviously  considerable  conflict  in  the  decisions  bearing  upon  the  general 
question  involved.  The  result  of  the  discussion  in  the  latest  case  before  the  court 
of  last  resort  in  England,  supra  (1866),  seems  to  be,  that  the  statute  is  the 
only  and  sufficient  warrant  for  creating  any  such  public  work  as  a  railway,  harbor, 
or  canal.  But  the  responsibility  of  those  to  whom  the  power  is  given,  depends 
upon  the  provisions  and  construction  of  the  statute ;  that  it  is  unimportant 
whether  the  grantee  of  the  power  be  a  natural  or  corporate  person,  the  respon- 
sibility in  either  case  will  be  the  same ;  that  in  the  absence  of  all  special  statutory 
provision  to  the  contrary,  the  builders  of  such  works,  and  those  who  operate  the 
same  for  their  own  benefit,  or  that  of  others,  are  bound  to  see  that  they  are  con- 
structed with  reasonable  care  and  skill,  and  maintained  in  the  same  condition.  It 
was  at  one  time  supposed  the  grantee  of  such  a  power  might  excuse  himself  from 
all  responsibility  by  showing  good  faith  and  diligence  in  the  discharge  of  the 
public  duly  imposed  by  the  grant  of  the  power.  Sutton  v.  Clarke,  6  Taunt.  29, 
where  Chief  Justice  Gibbs  said  :  "  He  has  done  all  that  was  incumbent  on  him, 
having  used  his  best  skill  and  diligence."  But  it  has  since  been  held  that  this  is 
not  enough,  and  that  the  grantees  of  such  a  power  are  bound  to  conduct  them- 
selves in  a  skilful  manner,  and  to  do  all  that  any  skilful  person  could  reasonably 
be  required  to  do  in  such  a  case.     Jones  i\  Bird,  5  B.  &  A.  837. 

[*606] 


636  ARRANGEMENTS    BETWEEN    COMPANIES.  PART  VI. 

making  them.  The  corporation  had  the  usual  powers  of  appoint- 
ing veater-bailifFs,  harbor-masters,  and  servants,  by  whose  hands 
the  duties  of  superintendence  were  carried  out.  A  ship,  in  entering 
one  of  the  docks,  struck  against  a  bank  of  mud  left  at  its  entrance, 
of  the  existence  of  which  the  corporation  was  either  aware,  or 
negligently  ignorant.  The  ship  and  cargo  being  both  injured,  sepa- 
rate actions  were  brought  by  the  respective  owners.  It  was  held, 
affirming  the  judgment  of  the  Exchequer  Chamber,10  that  as  long 
as  the  docks  were  open  for  the  use  of  the  public,  the  corporation 
were  bound,  whether  they  received  the  tolls  for  private  or  fiduciary 
purposes,  to  take  care  that  the  docks  were  navigable  without  dan- 
ger, and  consequently  that  they  were  liable  in  damages. 

8.  It  was  here  held,  that  in  construing  statutes  creating  bodies 
corporate,  such  as  the  plaintiffs,  the  legislature  must  be  consid- 
ered, unless  the  contrary  appears,  to  intend  that  the  corporate 
bodies  shall  be  under  the  same  liabilities  and  duties  as  are  imposed 
by  the  general  law  upon  private  persons  doing  the  same  things. 

9.  A  railway  company  which  for  an  agreed  compensation  re- 
ceives and  draws  over  its  own  line  the  cars  of  a  connecting  road 
*  is  responsible,  as  a  common  carrier,  for  the  safe  delivery  of  the 
passengers  and  freight,  the  same  as  in  other  cases.  And  where  by 
an  agreement  between  the  two  companies,  the  latter  is  to  indemnify 
the  former  from  all  claims  for  damages  in  consequence  of  the 
transportation,  unless  caused  by  the  default  of  the  transporting 
company,  or  from  some  defect  in  its  road,  this  will  leave  the  trans- 
porting company  responsible  both  under  the  contract,  and  in- 
dependently of  it,  upon  general  principles,  for  an  injury  caused  by 
a  defect  in  its  track,  although  without  its  fault.11 

10  3  H.  &  Norm.  164,  4  Jur.  (N.  S.)  636. 

"  Vermont  &  Mass.  Railw.  v.  Fitcbburgb  Railw.,  14  Allen,  462.  A  contract 
by  the  owners  of  a  railway,  to  be  made  under  an  act  of  incorporation,  with  the 
owners  of  a  rival  railway,  not  to  continue  such  road  beyond  a  certain  point,  is 
void  as  contravening  public  policy.  Such  a  contract  does  not  affect  a  prior 
agreement  between  the  owners  of  such  road,  who  also  owned  another  railway 
adjoining  the  latter,  to  divide  the  through  fares  of  passengers  on  such  continuous 
road  in  a  certain  proportion ;  although  the  former  contains  a  provision  to  de- 
duct an  additional  sum  monthly  from  such  through  fares  as  a  consideration  for 
entering  into  such  new  illegal  contract;  and  such  through  fares  must  be  divided 
as  though  such  second  and  illegal  contract  had  never  been  made. 

The  division  of  the  through  fares  of  passengers  upon  a  connected  line  of 
railwav,    consisting   of   two   adjoining   roads,    owned    bv   different  companies, 

[*607] 


§145.  POWERS    AND   DUTIES   OP    LESSEES.  637 

SECTION     IV. 

Extent  of  the  Powers  and  Duties  of  Lessees  of  Railways. 

1.  Statement  of  the  points  in  an  important  I  2.  Lessees  of  railways  liable  for  their   own 
English  case.  acts,  and  for  many  acts  of  lessors. 

§  145.  1.  A  very  elaborate  and  important  case  upon  the  relative 
rights  and  duties  of  the  lessors  and  lessees  of  railways  came  before 
the  Court  of  Common  Bench  in  June,  1851,  and  the  Exchequer 
Chamber  in  January,  1853.  The  importance  and  difficulty  of 
the  subject,  and  the  few  cases  upon  it  which  have  yet  arisen, 
will  justify  an  extended  notice  of  the  points  decided  in  the 
court  of  last  resort.1  In  1836  a  company  (afterwards  called  the 
West  London  Railway  Company)  was  incorporated  by  act  of  par- 
liament for  the  making  of  a  railway  from  the  Kensington  Canal  to 
join  the  London  and  Birmingham  (afterwards  called  the  London 
and  Northwestern)  and  the  Great  Western  Railways  at  a  place 
called  Holsden  Green,  and  certain  duties  were  by  the  act  cast 
upon  the  company ;  and,  amongst  other  things,  it  was  provided 
that,  if  the  railway  should  be  abandoned,  or  should  after  its  com- 
pletion, cease  for»the  space  of  three  years  to  be  used  as  a  railway, 
the  land  taken  by  the  company  for  the  purposes  of  the  act  should 
revert  to  the  owners  of  the  adjoining  land.  In  February,  1837, 
the  West  London  Railway  Company  entered  into  an  agreement 
with  the  Great  Western  Railway  Company,  under  which  the  last- 
mentioned  company  bound  themselves  to  stop  certain  of  their 
trains  at  a  point  where  their  railway  intersected*  the  West  London 
Railway,  for  the  purpose  of  transferring  passengers  and  goods  from 
one  railway  to  the  other,  and  to  stop  their  trains  for  the  purpose 
of  meeting  corresponding  trains  of  that  company,  in  the  man- 
according  to  certain  regulations,  for  six  years,  without  objection,  creates,  by 
construction,  a  modification  of  any  former  contract  in  conflict  therewith,  and 
becomes  binding  upon  the  respective  parties,  until  annulled  or  suspended  by  a 
new  contract.  Hartford  &  N.  H.  Railw.  v.  N.  Y.  &  N.  H.  Railw.,  3  Rob.  411. 
All  persons  who  car,ry  on  the  business  of  common  carriers  of  goods  or  pas- 
sengers upon  a  railway  will  be  held  responsible  to  third  persons  for  any  damage 
sustained  by  their  default,  even  when  they  were  acting  as  receivers  of  the  Court 
of  Chancery  of  another  state.     Paige  v.  Smith,  99  Mass.  395. 

1  The  West  London  Railw.  v.  The  London  &  N.  W.  Railw.,  11  C.  B.  327; 
s.  c.  18  Eng.  L.  &  Eq.  481. 

[*608] 


638  ARRANGEMENTS    BETWEEN    COMPANIES.  PART  VI. 

ner  particularly  detailed  in  the  deed.  In  1840,  another  act,  3  &  4 
Vict.  c.  105,  passed,  giving  further  powers  to  the  West  Lon- 
don Railway  Company  ;  the  thirty-fourth  section,  reciting  the 
agreement  of  February,  1837,  regulated  the  mode  of  crossing, 
until  the  plaintiffs'  railway  should  be  completed  ;  the  thirty-sixth 
section  saved  the  plaintiffs'  right  under  that  agreement ;  and  the 
thirty-seventh  section  provided,  that  if  the  plaintiffs'  line  was 
abandoned,  or  ceased  to  be  used  as  a  railway  for  three  years  after 
its  completion,  then,  on  payment  or  tender  to  them  by  the  Great 
Western  Railway  Company  of  the  purchase-money  of  the  piece  of 
land  where  the  railways  crossed,  the  said  land  should  vest 
in  the  Great  Western  Railway  Company.  By  a  subsequent  act 
(8  &  9  Yict.  c.  156),  reciting  that  "  it  had  been  found  that  the 
said  West  London  Railway  [which  it  appeared  in  evidence  had 
been  worked  with  passenger  trains  as  well  as  with  goods  trains] 
could  not  be  worked,  as  a  separate  and  independent  undertaking, 
with  advantage  to  the  proprietors  thereof,  but  that  the  same  might 
be  advantageously  worked  and  used  in  connection  with  the  said 
London  and  Birmingham  Railway,  and  the  said  Great  Western 
Railway,  or  either  of  them,  by  both  or  either  of  the  companies 
to  whom  the  said  last-mentioned  railways  belonged  ;  that  the  West 
London  Railway  Company  were  therefore  desirous  of  letting  the 
said  railway  on  lease  to  the  London  and  Birmingham  Railway 
Company ;  and  that  the  last-mentioned  company  were  willing  to 
accept  such  lease,  subject  to  certain  terms  and  conditions  which  had 
been  mutually  agreed  on  between  the  said  two  companies,"  —  the 
West  London  Railway  Company  was  authorized  to  lease  to  the 
London  and  Northwestern  Railway  Company  their  railway,  and  all 
their  rights,  powers,  and  privileges  in  relation  thereto, —  subject 
to  the  provisions  of  the  act,  and  to  the  performance  of  the  con- 
ditions to  be  mentioned  in  such  lease.  By  the  lease,  which  was 
afterwards  executed  in  pursuance  of  this  act,  the  London  and 
Northwestern  Railway  Company  covenanted,  amongst  other  things, 
that  they  would  "  at  their  own  expense,  during  the  continuance 
of  the  lease,  efficiently  work  and  repair  the  railway  and  works 
thereby  demised,  and  indemnify  the  West  London  Railway  Com- 
pany against  all  liabilities,  loss,  charges,  *  and  expenses,  claims,  and 
demands,  whether  incurred  or  sustained  in  consequence  of  any 
want  of  repair,  or  in  consequence  of  not  working  or  in  any  man- 
ner connected  with  the  working  of  the  same  railway  or  works  ; 
[*609] 


§  145.  POWERS   AND   DUTIES   OF   LESSEES.  639 

but  the  West  London  Railway  Company  shall  have  no  control 
whatever  over  the  working  or  management  by  the  London  and 
Birmingham  (Northwestern)  Railway  Company  of  the  West  Lon- 
don Railway  or  works.  It  was  held  :  —  That  in  order  to  perform 
their  covenant  to  work  efficiently,  the  defendants  were  not  bound 
under  all  circumstances  to  work  the  line  for  passenger  traffic  ;  but 
that,  if  as  much  gross  proceeds  could  be  obtained  by  efficiently 
working  the  railway  for  goods  only,  as  for  passengers  only,  or  for 
both  passengers  and  goods,  the  covenant  was  well  performed, — 
Piatt,  B.,  Martin,  B.,  not  concurring ;  That  the  agreement  of  Feb- 
ruary, 1837,  with  the  Great  Western  Railway  Company,  was  by 
virtue  of  the  provisions  in  the  leasing  act,  and  the  lease  itself, 
transferred  to  the  defendants,  the  lessees ;  and,  consequently, 
that  they  had  power  to  compel  the  Great  Western  Railway  Com- 
pany to  stop  trains  on  their  line,  pursuant  to  the  provisions  of  that 
agreement ;  That,  although  the  defendants  had  power  to  stop  the 
Great  Western  trains,  they  were  not  bound  to  exercise  it,  neces- 
sarily, as  a  part  of  the  efficient  working  of  the  line  demised  ;  and 
that  they  were  not  bound  necessarily  to  work  the  demised  line  in 
connection  with  the  trains  on  the  Great  Western  Railway  ;  That 
there  was  no  covenant  in  the  lease  to  bind  the  defendants  to  work 
the  demised  line  in  connection  with  either  or  both  their  own  or 
the  Great  Western  Railway ;  but  that  it  would  be  for  the  jury  to 
say  whether  or  not  they  could  practically  work  the  line  efficiently, 
without  some  connection  with  one  or  other  of  those  railways ; 
That,  for  the  purpose  of  considering  the  liability  of  the  defend- 
ants, they  were  not  to  be  treated  by  the  jury  as  if  they  were  lessees 
of  a  separate  and  independent  line,  having  no  control  over  the 
other  two  railways  ;  but  that  the  covenant  to  work  the  demised 
line  efficiently,  must  be  construed  with  reference  to  the  subject- 
matter,  and  the  character  of  the  defendants ;  That  the  obligation 
of  the  defendants  under  their  covenant,  was  not  limited,  as  de- 
cided by  the  court  below,  to  the  indemnification  of  the  plaintiffs 
from  the  obligations  cast  upon  them  by  their  acts  of  incorporation. 
The  court  say,  in  substance  :  — 

*  If  this  railway  had  been  leased  to  a  simple  individual,  or  com- 
pany without  any  connection  with  any  other  railway,  and  leased 
alone,  the  measure  of  efficient  working,  we  cannot  help  thinking, 
would  be  very  different  from  what  would  be  required  from  a 
company  whose  line  was  connected  with  it,  who  had  the  entire 

[*610] 


(UO  ARRANGEMENTS    BETWEEN    COMPANIES.  PART  VI. 

control  over  tlicir  own  line,  and  were  armed  with  a  power  of  adding 
to  the  traffic  of  the  railway,  by  the  control  possessed  over  another 
line,  and  whose  capabilities  and  powers  in  this  respect  were  rea- 
sons which  disposed  parliament  to  permit  the  lease  to  be  made  to 
them.  It  is  difficult,  indeed  almost  impossible,  to  define  the  pre- 
cise nature  and  degree  of  efficient  working  which  such  a  company 
oughl  to  apply,  under  this  covenant;  not  so  difficult  to  say  that 
it  ought  to  be  different  and  greater  than  would  be  required  from 
a  company  or  an  individual  who  had  nothing  but  the  railway  leased. 
They  could  only  be  required  to  supply  convenient  accommodation 
and  attendance  for  the  receipt,  and  sufficient  means  of  carriage,  of 
such  goods  and  passengers  as  might  be  offered  at  one  terminus, 
or  any  intermediate  station,  to  be  carried  to  the  other  terminus, 
or  some  other  intermediate  station  ;  and  this  however  small  the 
gross  receipt  might  be.  But  that  would  be  too  small  a  measure  of 
efficient  working,  in  the  case  of  these  defendants,  who  have  the 
power  of  supplying  more  goods  and  passengers  themselves  by  facil- 
itating the  transit  of  both  from  Holsden  to  the  Kensington  Ter- 
minus, or  Great  Western  Station,  or  by  increased  facilities  for 
receiving  them  at  the  Kensington  Terminus,  by  arrangements 
within  their  power,  without  any  serious  injury  to  their  own  concern. 
They  are  certainly  not  bound  to  make  a  sacrifice  of  their  own 
concerns  for  the  purpose  of  efficiently  working  this  line  so  as  to 
produce  the  greatest  profit  to  the  plaintiffs  and  themselves.  The 
covenant  must  have  a  reasonable  construction  in  this  respect. 
But  they  are,  we  think,  bound  to  do  more  than  a  lessee  of  merely 
the  railway  in  question  would  do,  unconnected  with  any  other. 

2.  It  seems  to  be  regarded  as  settled  that  the  persons  or  corpo- 
ration who  come  into  the  use  of  a  railway  company's  powers  and 
privileges,  are  liable  for  their  own  acts  while  continuing  such  use, 
and  also  for  the  continuance  permissively  of  any  wrong  which  had 
been  perpetrated  by  such  company  upon  land-owners  *  or  others, 
by  means  of  permanent  erections,  which  still  remain  in  the  use  of 
their  successors.2     Thus  it  has  been  held  that  the  lessees  of  a  rail- 

2  In  regard  to  the  construction  of  contracts  between  different  companies  for 
the  mutual  use  of  each  other's  line,  or  the  line  of  one  road  by  the  other,  tolls, 
&c,  see  the  Lancashire  &  Yorkshire  Railw.  v.  The  East  L.  Railw.,  7  Exch.  126; 
8  Eng.  L.  &  Eq.  564;  s.  c.  reversed  in  Exchequer  Ch.,  9  Exch,  591 ;  25  Eng. 
L.  .V-  Eq.  465;  and  affirmed  H.  Lords,  5  Ho.  Lds.  792;  36  Eng.  L.  &  Eq.  34. 
It  was  held  in  a  late  Scotch  case,  on  appeal  in  the  House  of  Lords,  that  under  an 

[*611] 


146. 


CONTRACTS   BETWEEN   DIFFERENT   COMPANIES. 


641 


way  are  liable  to  a  penalty,  under  the  statute,  for  not  having  a  bell 
upon  their  engines,  and  not  ringing  it,  as  required  by  the  statute.3 
But  the  lessees  of  a  railway  are  not  liable  for  the  acts  of  the  ser- 
vants of  the  lessors.4 


SECTION    V. 


Contracts  between  different  Companies  regulating  the  Traffic. 


1.  Such  contracts  generally  held  valid  and 

binding. 

2.  Arrangements  to  avoid  competition  valid. 


3.   Construction,  force,  and  operation  of  con- 
tracts between  different  railways. 


§  146.  1.  It  seems  in  general  to  have  been  considered,  that 
contracts  between  different  connecting  companies,  with  a  bona 
fide  view  to  regulate  traffic,  in  a  reasonable  and  just  manner, 
were  legal  and  binding.1  But  when  it  is  considered  that  these 
companies  have  to  a  very  great  extent  a  monopoly  of  the  traffic 
and  travel  of  the  country,  the  power  to  regulate  fares  and  freight 
by  arrangement  between  the  different  companies  is  certainly  one 
very  susceptible  of  abuse.  But  there  is  ordinarily  very  little 
*  danger  that  they  will  willingly  incur  the  serious  reprobation  of 


act  of  parliament  requiring  one  company  to  accept  a  lease  of  and  operate  the 
other's  road,  so  soon  as  it  was  in  readiness,  the  lessees  were  bound  to  accept  any- 
reasonable  portion  of  the  road,  so  soon  as  completed,  it  being  such  a  portion  as 
might  be  worked  with  advantage.  Edinburgh  &  G.  Railw.  v.  Stirling  &  D.  Railw., 
1  Macqu.  Ho.  Lds.  790 ;  Brown  v.  The  Cayuga  &  Susquehanna  Railw.,  12  N.  Y. 
486. 

3  Linfield  v.  Old  Colony  Railw.,  10  Cush.  562. 

4  Walford  on  Railways,  184,  citing  two  cases  not  reported. 

1  Shrewsbury  &  Birm.  Railw.  v.  London  &  N.  W.  Railw.,  17  Q.  B.  652; 
s.  c.  9  Eng.  L.  &  Eq.  394.  Lord  Campbell  says  here,  that  if  the  object  of  the 
contract  were  to  create  a  monopoly,  and  to  deprive  the  public  of  all  benefit  of 
competition,  it  might  be  illegal,  but  an  agreement  that  one  company  shall  not 
interfere  or  compete  with  the  other,  is  no  more  illegal  than  a  contract  by  which 
one  tradesman  or  mechanic  agrees  not  to  continue  his  business  in  a  particular 
place.  Same  case  in  Chancery,  before  Lord  Cottenham,  2  McN.  &  Gordon,  324, 
where  a  similar  view  is  taken  of  the  legality  of  the  contract.  Lord  Longdate, 
M.  R.,  in  Colman  v.  The  Eastern  Counties  Railw.,  10  Beav.  1 ;  s.  c.  4  Railw. 
C.  513. 

vol.  i.  41  [*612] 


642  ARRANGEMENTS    BETWEEN   COMPANIES.  PART  VI. 

public  opinion.  And  it  has  sometimes  been  doubted  whether 
contracts,  whereby  one  railway  company  seeks  to  assume  the 
entire  business  of  other  companies,  affording  them  a  guaranty  in 
regard  to  stock  and  profits,  or  either,  could  be  regarded  as  com- 
Lng  within  the  fair  interpretation  of  the  English  general  statutes, 
allowing  one  company  to  contract  for  running  upon  the  track  of 
Other  companies,  for  tolls,  and  so  could  be  held  valid  by  the  courts 
of  that  country,  either  in  law  or  equity.2  But  some  of  the  later 
cases  seem  to  sustain  such  contracts.3 

2.  There  is  no  principle  of  public  policy  which  renders  void 
a  traffic  arrangement  between  two  lines  of  railway  for  the  pur- 
pose of  avoiding  competition.  And  if  the  arrangement  embrace 
the  division  of  the  net  earnings  of  both  companies  in  certain 
definite  proportions,  the  court  will  not  interfere  upon  the  ground 
that  one  company  may  not  adventure  its  profits  upon  the  chances 
of  the  earnings  of  another  company.4  And  it  is  no  valid  objection 
that  such  division  is  based  upon  the  experience  of  the  result  of 
past  traffic.4 

3.  There  is  a  case  in  New  Hampshire,5  where  the  operation  and 
construction  of  a  contract  between  different  railway  corporations, 
for  conducting  the  traffic  across  both,  is  considerably  discussed. 
The  ordinary  rules  of  construction  of  contracts  were  held  appli- 
cable to  such  cases  ;  i.e.,  that  the  existing  powers  and  duties  of  the 
companies  and  the  leading  objects  of  the  contract  should  be  con- 
sidered in  aid  of  the  interpretation.  And  it  was  held  the  contract- 
ing companies  were  not  thereby  restricted  from  acquiring  new 
powers,  with  reference  to  distinct  objects,  but  such  new  powers 
must  be  kept  aloof  from  and  so  as  not  to  interfere  with  the  objects 
contemplated  by  the  contract,  and  could  not  be  allowed  to  have 
any  operation  upon  its  construction.  The  corporations  may,  by 
consent,  modify  the  operation  of  such  contract  or  the  application  of 
the  earnings  of  the  roads  ;  but  shareholders,  who  have  not  assented 
to  such  modification  of  the  contract,  may,  in  equity,  hold  both  cor- 
porations to  account  for  the  net  income,  according  to  the  terms  of 
the  contract.     And  if  the  contract  provides  for  deciding  all  dis- 

*  Simpson  v.  Denison,  10  Hare,  51 ;  s.  c.  13  Eng.  L.  &  Eq.  359. 

3  Ante,  §  142. 

4  Hare  v.  London  &  N.  W.  Railw.,  2  Johns.  &  H.  80;  s.  c.  7  Jur.  (N.  S.) 
1145;  post,  §  148. 

5  Marsh  v.  The  Eastern  Railw.,  43  N.  H.  515. 

[*612] 


§  147.  WHAT   CONSTITUTES    A   PERPETUAL   CONTRACT.  643 

putes  under  it,  by  arbitration,  a  court  of  equity,  upon  such  a  bill, 
may  enjoin  the  corporations  from  submitting  the  questions  involved 
to  such  arbitration. 


SECTION     VI. 

What  is  requisite  to  constitute  a  Perpetual   Contract  between 
different  Railioay   Companies. 

1.  Railway  connections  commonly  temporary.  I       venience  and  so  subject  to  legislative  con- 

2.  The  matter  is  one  mainly  of  public  con-  \        trol. 

§  147.  1.  Where  in  the  charter  of  a  railway  company  a  right  is 
reserved  to  the  legislature  to  allow  other  railways  to  connect 
with  the  former,  upon  such  terms  as  shall  be  reasonable,  com- 
plying with  the  established  regulations  of  such  company  upon 
the  subject,  and  in  pursuance  of  such  reservation  a  junction  is 
made  by  a  second  railway  company  with  the  first,  which,  in  faith 
of  such  connection,  proceeds  to  make  expensive  and  permanent 
arrangements  for  the  accommodation  of  the  enlarged  business 
thus  brought  upon  its  track,  it  was  held,  that  this  imposed  no 
*  obligation  upon  the  second  company  to  continue  this  connection 
permanently:  And  also  that  the  second  company  might  lawfully 
obtain  an  extension  of  their  own  road,  so  as  to  do  their  own  busi- 
ness, without  continuing  the  connection.1 

2.  It  seems  that  ordinarily  a  mere  legislative  permission  to  rail- 
way companies  to  connect  their  lines  imposes  no  obligation  upon 
either  company  to  do  so.  And  if  that  were  to  be  so  regarded,  it  is 
certain  that  no  absolute  vested  right  to  insist  upon  the  per- 
manency of  such  connection  could  exist  in  either  company,  which 
it  would  not  be  competent  for  the  legislature  to  dissolve.  After 
the  connection  is  made,  it  is  optional  with  either  party  to  dis- 
continue it,  and  clearly  so  by  legislative  permission.  Even  after 
such  connection  is  made,  it  is  not  incumbent  upon  either  company 
to  continue  the  same  gauge,  or,  if  so,  such  right  cannot  by  possi- 
bility exist  until  the  connection  is  made,  and  if,  before  that, 
either  company,  by  legislative  act,  is  relieved  from  all  obligation 
to  connect,  this  will  terminate  all  possible  claim  on  the  part  of  the 
other.2 

1  Boston  &  Lowell  Railw.  v.  The  Boston  &  Maine  Railw.,  5  Cusli.  375. 

2  Androscoggin  &  Kennebec  Railw.  v.  Androscoggin  Railw.,  52  Me.  417. 

[*613] 


mi 


ARRANGEMENTS    BETWEEN    COMPANIES. 


PART  VI. 


section   vn. 


( bntracts  by  Railways  ultra  vires,  and  Illegal. 


acts  to  make  erections  not  authorized 
by  their  charter. 
2.   Contracts   to  indemnify  other  companies 
against  expenst . 

tracts  to  divide  profits. 

4.  Illustration  of  the  doctrine  ultra  vires. 

5.  lion-  fin-  railways  may  accept  hills  of  ex- 

change. Railway  companies  not  empow- 
ered I"  iniike  bills  and  notes  except  from 
necessity. 

6.  Contracts  ultra  vires  cannot  be  specifi- 

cally enforced  against  the  directors. 


7.  Money  unlawfully  borrowed  company  must 

refund. 

8.  How  far  acts  ultra  vires  confirmed  by 

acquiescence. 

9.  Company   not   restrained  from    mal  ing 

unlawful  payments  on  the  ground  of 
policy. 

10.  Decision  rests  on  no  safe  grounds. 

11.  It  seems  too  much  like  paying  black-mail 

to  buy  peace. 


§  148.  1.  It  has  been  considered,  that  a  contract  by  a  railway 
company  with  the  corporation  of  a  city,  by  which  the  company 
bind  themselves  to  erect  a  bridge  and  other  accessory  works 
across  a  river,  at  a  point  where,  by  their  charter,  they  are  not 
authorized  to  pass,  and  to  do  this  by  a  definite  time,  and  in 
default  to  pay  one  thousand  pounds,  as  liquidated  damages, 
*such  works  being,  without  an  act  of  parliament,  a  nuisance,  is 
an  illegal  contract,  and  equally  so  notwithstanding  a  stipulation 
that  the  company  shall  in  the  mean  time  exert  themselves  to  obtain 
an  act  authorizing  the  erections.1 

2.  And  where  the  chairman  of  the  Southeastern  Railway 
Company  promised  the  managing  committee  of  a  proposed  rail- 
way company,  that  in  consideration  of  their  not  abandoning 
their  project,  but  pursuing  it  in  parliament,  the  Southeastern 
Railway  Company  would,  in  case  of  their  bill  being  rejected, 
insure  the  company,  of  which  they  were  the  managing  commit- 
tee, against  all  loss,  and  would  pay  all  expenses  incurred  by 
them  in  endeavoring  to  obtain   the   act ;    and   the  Southeastern 

1  The  Mayor  of  Norwich  v.  The  Norfolk  Railw.,  4  El.  &  Bl.  397 ;  s.  c.  30 
Eng.  L.  &  Eq.  120.  A  contract  by  a  railway  company,  in  consideration  of  the 
conveyance  to  the  company  by  a  natural  person  of  a  certain  piece  of  land  (not 
for  any  of  the  ordinary  uses  of  the  company,  as  defined  in  its  charter,  but  for 
purposes  of  speculation),  to  build  one  of  its  freight  and  passenger  depots  in  a 
specified  place,  is  void,  both  as  ultra  vires,  and  against  public  policy.  Pacific 
Railw.  r.  Seelv,  45  Mo.  212. 

[*614] 


§  148.  CONTRACTS    ULTRA    VIRES.  645 

Railway  Company  were  authorized,  by  their  acts,  to  apply  their 
funds  in  certain  ways,  not  including  this  :  it  was  held  2  that  the 
agreement  was  void,  as  it  was  an  agreement  made  by  contract- 
ing parties  (who  must  be  presumed  to  know  the  powers  of  the 
defendants'  company,  by  their  acts  of  parliament,  which  are  pub- 
lic acts)  that  the  company  should  do  an  act  which  was  illegal, 
contrary  to  public  policy  and  the  provisions  of  the  statutes.3 

3.  And  a  contract  by  which  one  railway  agrees  to  give  up  to 
another  railway  a  part  of  its  profits,  in  consideration  of  securing  a 
portion  of  the  profits  of  the  other  company,  is  illegal,  and  ultra 
vires} 

*  4.  The  rule  laid  down  upon  this  subject  by  a  distinguished 
English  judge,  on  a  recent  occasion  in  the  House  of  Lords,5  is 
perhaps  as  fair  and  full  a  definition  of  the  doctrine  as  can  be 
made.  "  There  can  be  no  doubt  that  a  corporation  is  fully  capable 
of  binding  itself  by  any  contract  under  its  common  seal  in  Eng- 
land, and  without  it  in  Scotland,  except  where  the  statutes  by 
which  it  is  located  or  regulated  expressly  or  by  necessary  implica- 
tion prohibit  such  contracts  between  the  parties.    Prima  facie  all 

2  McGregor  v.  The  Official  Manager  of  the  Deal  &  Dover  Railw.,  16  Eng. 
L.  &  Eq.  180,  in  Exchequer  Chamber  ;  s.  c.  18  Q.  B.  618.  See  also  East  Anglian 
Railways  Co.  v.  Eastern  Counties  Railw.,  11  C.  B.  775;  s.  c.  7  Eng.  L.  &  Eq. 
505,  where  the  same  question,  in  effect,  is  determined.     Ante,  §  16. 

3  Ante,  §  56,  n.  3. 

4  Shrewsbury  &  Birmingham  Railw.  v.  London  &  Northwestern  Railw.,  6 
House  of  Lords,  113;  s.  c.  29  Law  Times,  186.  But  one  company  may  lawfully 
accept  the  lease  of  an  unfinished  railway  under  a  specified  rent  yearly  after  the 
same  is  finished,  and  may  stipulate  for  the  payment  in  advance  of  the  rent  for  the 
whole  term  for  the  purpose  of  constructing  the  road  ;  and  this  will  be  no  infringe- 
ment of  the  statute  allowing  the  connection  of  the  two  roads,  upon  condition  the 
first  company  shall  not  expend  any  portion  of  its  reserved  funds  for  the  construc- 
tion of  the  other  road.  This  looks  very  much  like  one  company  building  the 
road  of  the  other  out  of  its  own  funds,  surplus  or  borrowed,  for  the  use  of  such 
road  a  certain  number  of  years.  If  so,  it  is  converting  surplus  into  capital  with- 
out legal  warrant.  The  case  is  so  near  the  dividing  line  between  what  is  and 
what  is  not  justifiable  as  not  to  be  of  much  authority,  for  general  adoption,  by 
those  who  desire  to  protect  an  existing  company  against  expending  its  funds  in 
extending  its  line.     It  is  one  of  those  cases  which  relucts,  at  declaring  the  bona 

fide  acts  of  corporations  ultra  vires,  where  no  great  harm  to  any  one  is  expected 
to  ensue,  and  the  public  interest  has  been  materially  subserved.  Durfee  v.  Old 
Colony  &  Fall  River  Railw.,  5  Allen,  230. 

5  Lord  Wensleijdale,  in  the  Scottish  Northeastern  Railw.  Co.  v.  Stewart,  3 
Macqu.  Ho.  Lds.  382;  s.  c.  5  Jur.  (N.  S.)  607. 

[*615] 


646  ARRANGEMENTS   BETWEEN    COMPANIES.  PART  VI. 

its  contracts  are  valid,  it  lies  on  those  who  impeach  any  contract 
to  make  out  that  it  is  avoided.  This  is  the  doctrine  of  ultra  vires, 
and  it  is  do  doubt  sound  law,  though  the  application  of  it  to  the 
facts  of  each  particular  case  has  not  always  heen  satisfactory  to  my 
mind."  His  Lordship  here  declares  that  it  would  not  be  ultra  vires 
for  a  company  wishing  to  alter  one  of  its  branches,  and  about  to 
apply  to  parliament  for  authority  to  do  so,  to  enter  into  a  contract 
for  land  which  would  be  necessary  for  the  purpose  if  they  should 
obtain  the  act. 

5.  The  question  how  far  a  railway  company,  without  special 
grant  of  power  for  that  purpose,  may  accept  bills  of  exchange,  is 
very  carefully  examined  and  thoroughly  discussed,  both  by  court 
and   counsel,  in    an   English   case.6     It   seems    to  be  there  con- 

6  Bateman  v.  Mid-Wales  Railw.  Co.,  Law  Rep.  1  C.  P.  499;  s.  c.  12  Jur. 
(N.  S.)  453.  The  language  of  Crompton,  J.,  in  Chambers  v.  Manchester  & 
Milford  Railw.  Co.,  5  B.  &  S.  588 ;  s.  c.  10  Jur.  (N.  S.)  700,  seems  to  place 
the  question  upon  its  true  basis.  "  The  law  as  laid  down  by  Parke,  B.,  in  the 
South  Yorkshire  Railw.  &  River  Dun  Company  v.  The  Great  Northern  Railw. 
Company,  does  not  appear  to  be  questioned,  and  seems  to  be  applicable  to  the 
present  case.  'Corporations,  which  are  creations  of  the  law,  are,  when  the  seal 
is  properly  affixed,  bound  just  as  individuals  are  by  their  own  contracts,  and  as 
much  as  all  the  members  of  a  partnership  would  be  by  contract  in  which  all  con- 
curred.' This  is  undoubtedly  true  of  corporations  generally ;  but  as  Mr.  Lush 
has  observed,  railway  corporations  are  the  creatures  of  an  act  of  parliament ;  and 
the  question  is,  how  far  provision  has  been  made  for  conferring  upon  them  bor- 
rowing powers,  which  are  said  to  have  been  exercised  in  the  present  case.  '  But,' 
proceeds  Parke,  B.,  'where  a  corporation  is  created  by  act  of  parliament  for 
particular  purposes,  with  special  powers,  then  indeed  another  question  arises ; 
their  deed,  though  under  their  corporate  seal  and  that  regularly  affixed,  does 
not  bind  them,  if  it  appear  by  the  express  provisions  of  the  statute  creating  the 
corporation,  or  by  necessary  and  reasonable  inference  from  its  enactments,  that 
the  deed  was  ultra  vires,  —  that  is,  that  the  legislature  meant  that  such  a  deed 
should  not  be  made.'  This,  as  it  appears  to  me,  touches  the  very  question  before 
us,  and,  moreover,  seems  to  convey  the  notion  that  directors  of  a  railway  com- 
pany are  of  the  nature  of  special  rather  than  general  agents  of  the  company  they 
represent.  They  have  the  custody  of  the  seal  of  the  company,  but  they  have  not 
the  power  to  affix  it  to  instruments  which  the  legislature  has  declared  to  be  ultra 
vires;  and  should  this  be  done,  the  company  are  not  bound."  .  .  .  "These  bonds, 
therefore,  seem  in  effect  to  amount  to  an  account  stated,  and  a  promise  to  pay, 
under  seal ;  and,  so  long  as  they  are  used  lor  the  purpose  for  which  they  were 
originally  intended,  it  may  be  that  there  is  nothing  objectionable  in  them.  But 
here  the  bonds  are  issued  by  the  directors  for  the  purpose  of  raising  money  to 
discharge  liabilities  into  which  the  plaintiff  has  entered  on  behalf  of  the  company, 
of  which  be  was  chairman  ;  and  tins  is,  to  say  the  least  of  it,  an  indirect  mode  of 
borrowing,  and  beyond  the  powers  conferred  upon  the  company  under  their  act. 

[*615] 


§  148.  CONTRACTS   ULTRA    VIRES.  647 

sidered,  *  that  unless  the  corporation  is  a  trading  company,  as 
the  Bank  of  England  or  the  East  India  Company,  there  is  no  pre- 
sumptive power  to  accent  bills  of  exchange.  In  the  case  of 
railway  corporations,  created  for  a  special  purpose,  there  is  no 
presumptive  power  either  to  borrow  money,  or  to  issue  or  accept 
bills  of  exchange  for  the  purpose  of  negotiation  in  the  market. 
The  rule  is  thus  stated  by  one  of  the  judges  in  the  case  last 
cited,  speaking  of  trading  corporations.  "  Such  a  corporation  may, 
in  some  oases,  bind  itself  by  promissory  notes  and  bills  of  ex- 
change. .  .  .  But  a  corporation  will  not  have  these  extraordinary 
powers,  unless  the  nature  of  the  business  in  which  it  is  engaged 
raises  a  necessary  implication  of  their  existence." 

6.  Contracts  ultra  vires,  entered  into  by  the  directors,  and  which 
are  not  binding  upon  the  company,  cannot  be  specifically  enforced 
against  the  directors,  nor  can  the  directors  be  decreed  by  the  court 
to  make  good  their  representations.7 

7.  A  corporation  having  no  power  to  lend,  made  a  loan  to  a 
company  having  no  power  to  borrow.  The  borrowers  were  aware 
of  those  facts.  They  bought  a  canal  with  the  money  ;  but  that 
*  was  set  aside,  and  the  purchase-money  ordered  to  be  refunded. 
The  loaning  company  sought  a  refunding  of  the  money  loaned  by 
them,  with  the  interest,  out  of  the  refunded  purchase-money.  It 
was  held  they  were  entitled  to  a  decree  accordingly.8  But  the 
lender  of  money  to  a  company  having  no  power  to  borrow,  cannot 
compel  the  company  to  refund  the  money,  unless  it  has  been  bona 
fide  applied  to  the  purposes  of  the  company.9 

8.  Where  part  of  a  contract  only  is  ultra  vires  of  the  company, 
a  court  of  equity  will  restrain  that  portion  only.10    Where  there 

The  point  was  also  put  to  us  upon  the  argument  whether  the  prohibition  to  borrow 
was  to  beheld  to  extend  to  the  raising  of  small  sums  for  the  immediate  necessities  of 
a  newly  started  company  ;  and  to  this,  we  think,  it  was  well  answered,  that  if  once 
a  company  be  permitted  to  overdraw  one  hundred  pounds,  there  would  be  no 
impediment  to  their  doing  so  to  any  extent  to  which  their  credit  would  reach.  1 
am,  therefore,  of  opinion  that  these  bonds  are  void,  and  that  the  plaintiff  is  not 
entitled  to  recover  upon  them." 

7  Ellis  v.  Coleman,  25  Barb.  662. 

8  Ernest  v.  Croysdell,  2  De  G.,  F.  &  J.  175 ;  s.  c.  6  Jur.  (N.  S.)  740. 

9  Troup  in  re,  29'Beav.  353;  Hoare  ex  parte,  30  id.  225. 

10  Maunsell  v.  Midland  Great  Western  (Ireland)  Railw.  Co.,  1  H.  &  M.  130; 
s.  C.  9  Jur.  (N.  S.)  660.  It  was  here  held,  that  an  agreement  to  contribute  to 
the  parliamentary  deposit  required  on  bills  promoted  by  another  company  is 
ultra  vires.     So  is  an  agreement  to  take  shares  in  the  future  extension  of  another 

[*616,  617] 


6  1 B  ARRANGEMENTS   BETWEEN   COMPANIES.  PART  VI. 

is  a  defect  of  capacity  in  the  company  to  do  the  act,  the  power 
cannot  in'  created  by  the  express  agreement  of  the  shareholders; 
nor  can  it  be  presumed  from  any  extent  of  acquiescence.  J>ut 
where  only  certain  formalities  are  required  to  the  valid  execution 
of  the  net,  as  the  consent  of  a  general  meeting,  that  will  be  pre- 
sumed from  acquiescence.11  But  where  dissentient  members12 
were  allowed  to  retire  by  the  resolution  of  a  general  meeting,  it 
was  hold  the  other  members  could  not  be  allowed  to  question 
its  regularity  and  validity,  after  an  acquiescence  of  twenty  years, 
although  ultra  vires. 

9.  Directors  of  an  insurance  company  offered  to  pay  losses 
caused  by  the  explosion  of  gunpowder,  although  expressly  ex- 
cepted from  the  risks  assumed  by  the  policy,  at  the  same  time 
not  admitting  any  legal  liability  to  do  so.  On  a  bill  by  a  share- 
holder to  restrain  the  directors  from  doing  so,  it- appearing  that 
it  was  usual  and  advantageous  for  companies  to  do  so,  although 
not  strictly  *  responsible  for  the  loss  :  held,  that  this  was  a  mode 
of  carrying  on  the  business  with  which  the  court  could  not  in- 
terfere.13 

10.  This  is  a  most  remarkable  decision,  but  more  remarkable 
for  the  reasons  and  grounds  upon  which  it  is  placed.  The  fact 
that  the  unlawful  payments  proposed  to  be  made  were  prudent 
and  politic,  is  nothing  more  than  may  be  urged  in  favor  of  all 
proposed  illegal  diversion  of  the  funds  of  a  company.  It  is  always 
proposed  thereby  to  advance  the  interests  of  the  company,  and  con- 
sequently the  dividends  to  the  shareholders.  It  is  impossible  to 
suppose  that  any  such  principle  can  ultimately  maintain  its  ground 
in  the  English  courts  of  equity. 

11.  The  subsequent  cases  seem  to  manifest  the  feeling  that  all 

company.  So  also  is  an  agreement  to  make  traffic  regulations  applicable  to  fut- 
ure extensions.  But  no  such  agreement  is  ultra  vires  if  its  validity  is  expressly 
made  dependent  upon  the  sanction  of  parliament.  But  where  part  of  an  entire 
arrangement  between  two  companies,  the  parts  of  which  are  dependent  upon 
each  other,  is  illegal,  or  ultra  vires,  a  court  of  equity  will  restrain  the  execution 
of  every  portion  of  the  arrangement,  Hattersley  v.  Shelburne,  7  L.  T.  (N.  S.) 
650. 

11  British  Provident  Life  Ins.  Co.,  ex  parte  Grady,  9  Jur.  (N.  S.)  631. 

'-'  Brotherhood  in  re,  31  Beav.  365.  A  restriction  upon  the  liability  of  the 
shareholders  for  bills  drawn  by  the  company  will  not  affect  the  responsibility  of 
the  company.     State  Fire  Ins.  Co.,  8  L.  T.  (N.  S.)  146. 

13  Taunton  v.  Royal  Ins.  Co.,  2  H.  &  M.  135;  s.  c.  10  Jur.  (N.  S.)  291. 
[*618] 


148  a. 


CONTRACTS   ULTRA    VIRES. 


649 


secure  ground  to  rest  upon  is  taken  from  under  them.  It  is  said  in 
one  case  14  that  in  matters  strictly  relating  to  the  internal  manage- 
ment of  the  company,  even  though  not  strictly  within  the  terms  of 
the  constitution  of  the  company,  the  court  will  not  interfere.  But 
it  is  here  added,  if  the  matters  complained  of  are  plainly  beyond 
the  powers  of  the  company,  and  are  inconsistent  with  the  objects 
for  which  the  company  was  constituted,  the  court  will  interfere, 
at  the  instance  of  the  minority,  to  prevent  the  act  complained  of 
from  being  carried  out.  If  this  is  intelligible  to  others,  or  recon- 
cilable with  good  sense  and  good  law,  it  certainly  passes  our  com- 
prehension, and  we  can  only  say  that  we  should  not  expect  it  to  be 
long  maintained  anywhere.  It  is  nothing  more  or  less  than  paying 
black-mail  to  buy  peace,  and  if  public  companies  can  do  that  with 
funds  they  hold  in  trust,  it  may  be  as  well  for  courts  of  equity  not 
to  attempt  to  define  what  they  may  or  may  not  do. 


1.  The  power  of  a  receiver  to  sue  in  the  name 

of  the  corporation. 

2.  Foreign  railway  corporation  acquired  no 

prerogative  rights  by  leasing  a  portion  of 
the  track  of  a  domestic  railway. 


3.  Statement  of  the  contract  and  ground  of 

holding  it  void,  as  being  ultra  vires. 

4.  Further  reasons  why  such  contract  cannot 

be  specifically  performed  here. 
n.  3.   Comments  upon  the  preceding  proposi- 
tions. 


§  148  a.  The  foregoing  points,  decided  by  a  court  of  learning 
and  experience,  in  regard  to  the  rights  of  railway  corporations  in 
one  state  to  enter  into  permanent  arrangements  with  similar  cor- 
porations in  other  states,  as  published  in  the  American  Law 
Register,1  we  deem  of  sufficient  importance  as  illustrating  some  of 
the  doctrines  discussed  in  the  preceding  section,  to  be  here  re- 
peated. The  opinion  of  Judge  Storer,  at  length,  will  be  found  in 
the  American  Law  Register,2  and  will  repay  careful  reading. 

Superior  Court  of  Cincinnati.  Ohio  and  Mississippi  Railroad 
Company  v.  Indianapolis  and  Cincinnati  Railroad  Company.1 
'  1.  A  receiver  appointed  by  the  Circuit  Court  of  the  United 
States  of  the  Southern  District  of  Ohio,  to  take  possession  of  a 
railway  and  its  effects,  may  sue  in  this  court,  upon  a  contract 
made  by  that  corporation  in  the  corporate  name  of  the  railway, 
without  disclosing  in  the  petition  his  own  name  as  receiver. 


14  Gregory  v.  Patchett,  33  Beav.  595 : 
1  Vol.  5  (N.  S.),733. 


c.  10  Jur.  (N.  S.)  1118. 
2  Vol.  5  (N.  S.),  733-744. 

[*619] 


650  ARRANGEMENTS    BETWEEN    COMPANIES.  PART  VI. 

2.  A  foreign  corporation  having  no  charter  from  the  state  of 
Ohio,  authorizing  it  to  construct  and  operate  a  railway  in  this 
state,  cannot,  by  a  transfer  of  a  portion  of  a  railway  already  con- 
structed in  the  state  by  legal  authority,  acquire  a  right  to  use  and 
operate  such  railway  within  this  state. 

3.  The  plaintiffs,  being  authorized  to  construct  and  operate  a 
railway  from  Cincinnati  to  Yincennes,  and  the  defendants,  being 
authorized  to  construct  and  operate  a  railway  from  Indianapolis 
to  Lawrenceburg,  of  a  different  gauge,  entered  into  a  contract 
whereby  the  defendants,  in  consideration  of  being  allowed  to  lay  a 
third  rail  on  the  road  of  the  plaintiffs,  to  furnish  motive  power  for 
hauling  the  cars  of  the  defendants  on  that  part  of  the  road,  agreed, 
among  other  things,  to  lend  to  the  plaintiffs  $30,000,  for  the  pur- 
pose of  erecting  a  depot  for  the  plaintiffs  in  Cincinnati,  to  become 
the  property  of  the  plaintiffs  at  the  expiration  of  the  contract ;  to 
form  no  connections  at  or  beyond  Lawrenceburg  prejudicial  to  the 
plaintiffs ;  and  to  give  the  plaintiffs  exclusive  control  of  the  em- 
ployes of  the  defendants  while  on  the  road  of  the  plaintiffs.  Held, 
on  the  construction  of  the  charters  of  the  plaintiffs  and  defendants, 
that  such  contract  was  beyond  the  competency  of  the  contracting 
parties,  and  was  void. 

4.  The  contract  also  provided,  that  the  defendants  should  have 
the  use  of  a  depot  and  certain  grounds  in  Cincinnati  for  unloading 
goods  and  lumber,  for  thirty  years.  Held,  that  this  created  an 
easement  in  the  land,  and  was,  in  connection  with  the  laying  and 
keeping  up  the  third  rail,  in  substance  a  lease,  which  the  plaintiffs 
had  no  authority  to  make,  and  that  it  being  for  more  than  three 
years,  was  also  invalid  under  the  statute  of  frauds,  for  the 
*  want  of  legal  acknowledgment.  Held,  also,  that  the  defendants 
having  as  a  foreign  corporation  no  right  to  accept  a  lease  of  a 
railway  in  Ohio,  the  plaintiffs  could  not  have  had  a  specific  per- 
formance of  the  agreement,  the  remedies  of  the  parties  not  being 
mutual.3 

'  A\  e  can  see  no  good  ground  to  question  the  soundness  of  the  foregoing 
opinion ;  but  it  seems  to  us  that  the  case  exhibits  in  a  strong  light  the  embar- 
rassments constantly  resulting  from  having  railway  corporations  restricted  in 
their  corporate  functions  to  the  limits  of  state  lines.  It  would  certainly  seem 
that  there  is  far  more  necessity  and  propriety  in  having  all  the  railway  corpora- 
tions in  the  country  possess  a  national  character,  than  there  is  in  giving  the  same 
character  to  all  the  banks  of  the  country,  which  has  been  already  practically 
effected  by  means  of  discriminating  taxation.  There  is  every  reason  to  regard 
[*620] 


§  149.    EXONERATED   FROM    CONTRACTS   BY   ACT   OF   LEGISLATURE.     651 

SECTION     VIII. 

Companies  exonerated  from  Contracts,  by  Act  of  the  Legislature. 

§  149.  It  seems  to  be  conceded  that  a  railway  company  may 
plead  a  subsequent  act  of  the  legislature,  in  bar  of  the  perform- 

railways  as  national  institutions,  in  almost  every  sense  in  which  they  possess  a 
public  character,  or  perform  public  service,  with  the  single  exception  of  inter- 
communication, which  is  mainly  of  local  and  state  concern. 

1.  As  one  of  the  wonderful  advancements  of  military  operations  in  modern 
times,  by  which  railways  have  wrought  a  complete  change  in  the  conduct  of  war, 
and  have  become  an  indispensable  necessity,  they  are  entirely  of  a  national 
character,  so  much  so  as  to  exclude  all  state  control  in  times  of  war  or  civil 
commotion. 

2.  In  regard  to  postal  communication,  which  has  been  regarded  as  exclusively 
of  a  national  character,  since  the  early  and  palmy  days  of  the  Persian  monarchy, 
where  public  posts  are  said  to  have  originated,  railways  must  also  be  regarded  as 
an  indispensable  necessity.  For  if  we  admit  the  right  of  state  control  over  all 
or  any  considerable  portion  of  the  railways  in  the  country,  it  will  place  all  postal 
communication  at  the  mercy  and  good  will  of  state  authority,  which  any  one 
must  see  is  wholly  inadmissible. 

We  discussed  the  rights  of  railway  corporations  in  regard  to  acquiring  land 
and  other  prerogative  rights  in  adjoining  states,  without  the  action  of  the  legislat- 
ure, in  a  case  in  Vermont,  many  years  since,  when  we  came  to  the  conclusion 
that  no  such  prerogative  rights  could  be  acquired  out  of  the  state  of  the  charter, 
except  by  legislative  act.  State  v.  B.  C.  &  M.  Railw.,  25  Vt.  433  ;  s.  c.  1  Redf. 
Am.  Railw.  Cases,  84.  This  will  not  preclude  such  corporations  from  acquiring 
the  title  of  land  out  of  the  state,  by  voluntary  contract,  or  entering  into  any  other 
contract,  of  the  ordinary  character  of  contracts  between  natural  persons,  but  it  will 
not  justify  taking  land  compulsorily  or  operating  a  railway  and  taking  tolls,  &c. 

3.  The  right  of  the  Congress  of  the  United  States,  under  the  Constitution,  to 
regulate  commerce  between  the  different  states,  would  clearly  give  the  power  to 
control,  within  certain  limits,  the  transmission  of  freight  and  passengers,  from 
one  state  to  another.  And  this  might  enable  the  national  authority  to  remedy 
existing  evils  upon  long  lines,  to  some  extent.  But  what  is  needed  seems  to  be 
the  subjecting  of  the  entire  railway  system,  throughout  the  country,  to  a  single, 
salutary,  and  prudent,  and,  at  the  same  time,  energetic  control.  It  seems  ques- 
tionable how  far  this  can  be  effected,  under  the  name  of  regulating  commerce 
between  the  different  states.  But  that  it  must,  in  some  way,  be  obtained  by  the 
national  government  seems  now  pretty  generally  conceded  by  those  who  believe 
that  any  such  control  is  requisite  for  the  protection  of  public  or  private  interests, 
against  the  interest  of  private  gain,  through  the  force  of  an  entire  monopoly  of 
intercommunication.  We  know  that  the  most  engrossing  monopoly,  if  wisely 
conducted,  will  not  wantonly  outrage  the  public  sentiment  of  justice  ;  but  where 

[*620] 


652 


ARRANGEMENTS    BETWEEN    COMPANIES. 


PART  VI. 


ancc  of  their  covenant  or  contract.  But  it  will  afford  no  bar, 
*  unless  the  act  either  expressly,  or  by  clear  implication,  renders  the 
duty  of  the  contract  unlawful  or  comes  in  conflict  with  it.1 


SECTION    IX. 


Width  of  Gauge.  —  Junction  with  other  Roads. 


1.    Where  the  act  requires  broad  gauge,  does 

not  prohibit  mixed  gauge. 
.'.   /  ■   mission  to  unite  icith  other  road,  signi- 

a  road  tie  facto. 
3.  Equity   will    sometimes    enjoin    company 

against  changing  gauge. 


4.  Contract  to  make  gauge  of  the  companies 

the  same,  although  contreiry  to  law  of 
state,  at  its  date,  may  be  legalized  by 
statute. 

5.  The  import  and  construction  of  the  terms 

"railway  connection." 


§  150.  1.  Where  the  company's  special  act  required  them  to  lay 
down  a  railway  of  such  gauge  and  construction  as  to  be  worked 
in  connection  with  another  company  named  (the  broad  gauge),  a 
court  of  equity  declined  to  interfere,  by  injunction,  when  the  com- 
pany were  laying  down  part  of  the  line  with  double  tracks  of  the 
mixed  gauge,  there  being  no  prohibition  in  the  act  against  such  a 
construction,  the  broad  gauge  being  all  which  was  required  by  the 
act.1 

2.  Where  the  act  of  incorporation  gave  the  company  the  right 
to  construct  a  road  in  a  particular  line,  and  also  required  them  to 
purchase  a  former  railway  along  the  same  route,  and  gave  them 
the  right  to  connect  "  their  road  with  any  road  legally  authorized 

the  temptation  is  so  great,  it  is  always  desirable  to  have  some  redress,  in  the 
language  of  Magna  Charta,  which  is  free,  cheap,  and  open  to  all ;  which  need 
not  be  bought ;  which  will  not  be  delayed ;  and  which  cannot  be  denied.  Any 
such  redress  from  the  force  of  state  control  seems  now  nearly,  if  not  quite,  hope- 
less. Whether  the  remedy,  through  the  national  tribunals,  is  more  hopeful,  is 
the  problem  hereafter  to  be  solved. 

1  Wvmt  /•.  The  Shropshire  Union  Railw.  &  Canal,  5  Exch.  420;  Stevens  v. 
South  Devon  Railw.,  13  Beav.  48  ;  s.  c.  12  Eng.  L.  &  Eq.  229.  But  where  one 
was  induced  to  give  lands  to  a  railway  company,  or  subscribe  for  stock,  and  the 
essential  inducement  to  make  the  contract  was  that  the  company  should  construct 
their  road  within  some  definite  time,  the  extension  of  time  for  the  construction 
of  the  road,  by  act  of  the  legislature,  will  not  exonerate  the  company,  from  their 
obligation  to  such  person.     Henderson  v.  Railw.  Company,  17  Texas,  560. 

Great  Western  Railw.  v.  Oxford,  Worcester,  &  Wolverhampton  Railw.,  5 
De  G.  &  S.  437  ;  s.  c.  10  Eng.  L.  &  Eq.  297. 
[*621] 


§150.  WIDTH   OP    GAUGE. — JUNCTION   OF   RAILWAYS.  653 

to  come  within  the  limits  of  the  city  of  Erie,"  it  was  held  that  this 
right  extended  equally  to  the  road  purchased  or  built  by  them, 
and  that  they  had  the  right  to  connect  with  any  other  railway  in 
the  actual  use  of  another  company  in  Erie,  without  inquiry  whether 
such  company  were  in  the  legal  use  of  their  franchises  at  the  time 
or  not.  That  is  a  question  which  cannot'  be  inquired  into  in  this 
collateral  manner.2 

*  3.  Where  two  railway  companies  agree  to  operate  their  roads  in 
connection,  between  certain  points,  if  one  of  the  companies  changes 
its  gauge,  so  as  to  break  up  the  connection  contemplated,  an  in- 
junction will  be  granted  to  enforce  the  contract.3 

4.  A  contract  entered  into  by  railway  companies  to  make  the 
gauge  of  both  the  companies  the  same,  is  not  illegal,  although  this 
be  contrary  to  the  law  of  one  of  the  states,  if  the  contract  appear 
to  have  been  made  with  reference  to  an  alteration  of  the  powers  of 
the  company,  in  that  respect,  and  that  such  alteration  was  pro- 
cured before  any  part  of  the  track  was  laid.3 

5.  The  subject  of  "  railway  connection  "  and  the  import  of  those 
terms,  is  discussed  in  a  case  in  Pennsylvania,4  and  it  is  there 
held  that  the  terms,  when  used  without  qualification,  must  mean, 
either  such  a  union  of  tracks  as  to  admit  the  passage  of  cars  from 
one  road  to  the  other  ;  or  else  such  an  intersection,  as  to  admit  of 
the  convenient  interchange  of  freight  and  passengers,  at  the  point 
of  intersection.  One  would  suppose  the  latter  must  always  be 
implied,  by  the  use  of  such  terms,  at  the  very  least ;  and  that 
where  the  roads  are  of  the  same  gauge,  so  as  to  admit  of  a  running 
connection,  such  connection  would  naturally  be  intended  by  the 
use  of  these  terms. 

2  Cleveland,  Painsville,  &  Ashtabula  Railw.  v.  The  City  of  Erie,  27  Penn.  St. 
380. 

3  Columbus,  Piqua,  &  Inch  Railw.  v.  Ind.  &  Belief.  Railw.,  5  McLean's  C. 
C.  R.  450. 

4  Phil.  &  Erie  Railw.  v.  Atlantic  &  Great  Western  Railw.,  53  Penn.  St.  20. 

[*622] 


PART   YII. 

THE   LAW  OF   MANDAMUS  AND  OTHER  PREROGATIVE 
REMEDIES   AS   APPLIED   TO   RAILWAYS. 


PART    YII. 

THE  LAW  OF  MANDAMUS  AND  OTHER  PREROGATIVE 
REMEDIES   AS   APPLIED   TO   RAILWAYS. 


^CHAPTER     XXIII. 


MANDAMUS. 
SECTION    I. 


General  Rules  of  Law  governing  this  Remedy. 


1.  Regarded  as  a  supplementary  remedy. 

2.  Mode  of  procedure. 

(1.)  Matter  of  discretion. 
(2.)  Alternative  ivrit. 

3.  Proceedings   in   most    of  the   American 

courts. 

4.  English  courts  do  not  allow  application  to 

be  amended. 


5.  Recent  English  statute  has  essentially  sim- 

plified proceedings. 

6.  Mode  of  trying  the  truth  of  the  return. 

7.  Costs  rest  in  the  discretion  of  court. 

8.  Mode  of  service. 

9.  By  late  English  statutes,  mandamus  effects 

specific  performance. 


§  151.  1.  The  office  of  the  writ  of  mandamus  is  very  extensive. 
It  is  the  supplementary  remedy  where  all  others  fail.  Lord  Mans- 
field says,1  "  It  was  introduced  to  prevent  disorder,  from  a  failure 
of  justice  and  defect  of  police.  Therefore  it  ought  to  be  used  upon 
all  occasions  where  the  law  has  established  no  specific  remedy,  and 
where  in  justice  and  good  government  there  ought  to  be  one." 
"  If  there  be  a  right  and  no  other  specific  remedy  this  should  not 
be  denied." 2     The  general  rules  applicable  to  the  use,  and  the 

1  Rex  v.  Barker,  3  Burr.  1265.  See  Woodstock  v.  Gallup,  28  Vt.  587 ;  Peo- 
ple v.  Head,  25  111.  325 ;  Draper  v.  Noteware,  7  Cal.  276.  The  same  principles 
are  declared  by  Lord  Ellenborouyh,  in  Rex  v.  Archbishop  of  C,  8  East,  213, 
219  ;  6  Ad.  &  El.  321.  And  where  there  is  any  other  equally  efficacious  remedy 
this  writ  will  not  lie.  Bush  v.  Beavan,  1  H.  &  C.  500  ;  32  L.  J.  Exch.  54 ;  post, 
§  161,  pi.  3. 

2  Commonwealth  v.  Pittsburgh,  34  Penn.  St.  496 ;  Fremont  v.  Crippen,  10 
Cal.  211.     In  this  last  case  it  was  held  mandamus  would  lie  to  compel  the  sheriff 

vol.  i.  42  [*623] 


658  MANDAMUS.  PART  VII. 

mode  of  obtaining  this  writ,  are  sufficiently  discussed  in  the  digests. 
abridgments,  and  elementary  works,  under  this  title.3 

*  '1.  The  mode  of  proceeding  in  obtaining  the  writ  is  controlled 
very  much  by  statute  in  England  at  the  present  time,  and  in  most 
of  the  American  states.  There  are  some  few  points  which  are  of 
general  application. 

(1.)  The  power  of  granting  the  original  prerogative  writ  of 
mandamus  in  England  was  confined  to  the  Court  of  King's  Bench,3 
and  in  most  of  the  American  states  it  is  given,  by  statute,  to  the 
highest  court  of  law  of  general  jurisdiction.3  This  prerogative 
writ  seems  anciently  to  have  been  issued  to  inferior  jurisdictions 
by  the  Court  of  Chancery  in  England,  but  not  to  the  King's 
Bench.4  This  writ  is  not  demandable  as  of  right,  but  is  awarded 
in  the  discretion  of  the  court.5 

to  execute  a  writ  of  possession,  although  there  might  be  either  a  civil  action  or  a 
criminal  prosecution  against  him  for  the  refusal,  since  neither  of  these  remedies 
•would  do  full  justice  to  the  complainant. 

;!  L2  Petersdorflf,  Ab.  438;  6  Bac.  Ab.  309,  418,  tit.  Mandamus;  3  Black. 
Comm.  110,264;  1  Kent,  Comm.  322;  Curtis's  Digest,  333.  And  that  the 
party  may  have  some  remedy  in  equity  will  not  preclude  this  remedy.  But  see 
infra.  Nor  that  an  indictment  will  lie.  Post,  §  161.  And  it  is  no  bar  to  this 
remedy  that  the  party  might  by  statute  build  the  work,  at  the  expense  of  the 
other  party,  by  order  of  a  justrce.  Reg.  v.  The  Norwich  &  B.  Railw.,  4  Railw. 
C.  112.  The  legislature  empowered  the  board  of  supervisors  of  the  county  of 
New  York  to  cause  to  be  raised  and  collected  a  sum  not  exceeding  $80,000  to 
meet  and  pay  whatever  sum  up  to  that  amount  might  be  found  due  to  the  con- 
tractors with  the  commissioners  of  records,  and  authorized  the  comptroller  to  pay 
"  said  amount  when  it  should  be  judicially  determined. "  The  contractor  not 
having  the  power  to  bring  action  and  obtain  judgment  against  the  supervisors  in 
the  regular  manner,  it  was  held  that  this  was  not  the  intention  of  the  legislature, 
and  that,  in  the  absence  of  any  specific  directions  in  the  act  as  to  how  this  judicial 
determination  should  be  obtained,  it  would  be  unreasonable  to  infer  that  any 
other  remedy  was  intended  than  that  attainable  by  mandamus  ;  and  that  applica- 
tion for  mandamus  was  the  proper  remedy  for  the  contractors,  upon  the  refusal 
of  the  comptroller  to  pay  them  the  amount  certified  by  the  commissioners  to  be 
due  them.  People  v.  Haws,  34  Barb.  69.  And  see,  to  the  same  point,  Regina 
v.  Port  of  Southampton,  1  E.  B.  &  S.  o ;  s.  c.  7  Jur.  (N.  S.)  990 ;  30  L.  J.  Q. 
B.  214.  And  where  a  new  right  has  been  created  by  act  of  parliament,  the 
proper  mode  of  enforcing  it  is  by  mandamus  at  common  law.  Simpson  v.  Scot- 
tish Union  Fire  &  Life  Ins.  Co.,  9  Jur.  (N.  S.)  711  ;  s.  c.  32  L.  J.  Ch.  329;  s.  c. 
1  II.  &  M.  681.     Commonwealth  v.  Pittsburg,  34  Penn.  St.  496. 

4  The  Rioters'  Case,  1  Vernon,  175;  Ang.  &  Ames  on  Corporations,  §  697. 
But  see  R.  r.  Severn  &  Wye  Railw.,  2  B.  &  Aid.  646  ;  R.  v.  Commissioners  of 
Dean  Inclosure,  2  M.  &  S.  80;  R.  v.  Jeyes,  3  Ad.  &  El.  416. 

6  Rex  v.  Bishop  of  London,  1  T.  R.  331,  334;  Rex  v.  Bishop  of  Chester,  id. 
[*624] 


§  151.       GENERAL   RULES   OP   LAW   GOVERNING   THIS   REMEDY.  659 

(2.)  The  form  of  application  is  either  by  motion  in  court,  and 
the  production  of  affidavits  in  support  of  the  ground  of  the  mo- 
tion, in  which  case,  if  the  motion  prevails,  a  rule  to  show  cause 
why  the  writ  should  not  issue,  or  an  alternative  mandamus  issues 
*  upon  the  ex  parte  hearing,  and  the  definitive  hearing  is  had  upon 
the  return  of  the  rule,  or  the  return  to  the  alternative  writ. 

3.  The  more  common  practice  in  the  American  courts  (which 
often  hold  but  one  or  two  short  sessions  annually  in  a  county,  and 
where,  by  consequence,  such  formal  proceedings  would  be  attended 
with  embarrassing  delays)  is,  by  formal  petition,  alleging  in  detail 
the  grounds  of  the  application,  which  is  served  upon  the  opposite 
party,  and  all  parties  supposed  to  have  an  interest  in  the  questions 
involved,  a  sufficient  time  before  the  term  to  give  an  opportunity 
for  taking  the  testimony  upon  notice  ;  and  upon  the  return  of  the 
petition,  the  case  is  heard  upon  its  general  merits ;  and  in  either 
form,  if  the  application  prevails,  a  peremptory  mandamus  issues, 
the  only  proper  return  to  which  is  a  certificate  of  compliance  with 
its  requisitions,  without  further  excuse  or  delay.6 

396,  404 ;  id.  425 ;  2  T.  R.  336 ;  People  v.  Auditor  of  Public  Accounts,  33  111. 
9  ;  s.  c.  3  Am.  Law  Reg.  (N.  S.)  332.  And  the  court  will  not  entertain  juris- 
diction unless  substantial  interests  are  involved.     Id. 

e  Hodges  on  Railways,  640-644.  It  is  first  indispensable  to  demand  of 
the  party,  against  whom  the  application  is  to  be  made,  to  perform  the  duty, 
and  the  party  must,  it  would  seem,  be  made  aware  of  the  purpose  of  the  de- 
mand. The  King  v.  Wilts  &  Berks  Canal  Navigation,  3  Ad.  &  Ellis,  477  ; 
The  King  v.  Brecknock  &  Abergavenny  Canal  Navigation,  3  Ad.  &  Ellis,  217. 
People  v.  Romert,  18  Cal.  89.  The  refusal  must  be  of  the  thing  demanded, 
and  not  of  the  right  merely.  The  King  v.  Northleach  &  Witney  Roads,  5  Barn. 
&  Ad.  978.  The  refusal  must  be  direct  and  unqualified,  but  may  be  made  as 
effectual,  by  silence  as  by  words  or  acts,  but  the  party  should  understand  that 
he  is  expected  to  perform  the  required  duty,  upon  pain  of  the  legal  redress 
being  resorted  to,  without  further  delay.  The  Queen  v.  Norwich  &  Brandon 
Railw.,  4  Railw.  C.  112;  The  Queen  v.  Bristol  &  Exeter  Railw.,  4  Q.  B.  162. 
But  this  should  be  taken,  as  a  preliminary  question,  according  to  the  English 
practice.  Queen  v.  Eastern  Counties  Railw.,  10  Ad.  &  Ellis,  531.  But  in  Com- 
monwealth v.  Commissioners,  37  Penn.  St.  237,  a  demand  was  held  unnecessary 
in  the  case  of  public  officers  neglecting  to  do  their  duty.  Conditions  precedent 
must  be  shown  to  have  been  performed.  But  the  mere  requisition  of  an  act  of 
parliament  that  parties  claiming  damages,  by  reason  of  a  railway  company's 
works,  shall  enter  into  a  bond  to  prosecute  their  complaint  and  pay  their  propor- 
tion of  the  costs,  before  the  company  should  be  obliged  to  issue  their  warrant  to 
summon  a  jury,  and  if  not  so  done,  the  company  might  give  notice,  requiring 
the  same  to  be  done  before  commencing  the  inquiry,  was  held  not  to  be  a  condi- 

[*625] 


660  MANDAMUS.  PART  VII. 

■  1.  The  general  rule  of  the  English  courts  seems  to  be,  that  if 
the  first  application  is  denied  on  account  of  defects  in  the  affida- 
vits, not  to  permit  a  second  application  to  be  made;  and  the  rule 
extends  to  other  writs,  resting  in  the  discretion  of  the  court.7 

tinii  precedent,  unless  required  by  the  company.  The  Queen  v.  The  North 
Union  Railw.,  1  Railw.  ('.  729.  And  where  an  umpire  failed  to  make  an  award, 
it  was  held  the  company  might  be  compelled  by  mandamus,  to  issue  a  warrant 
for  the  sheriff  to  assess  the  compensation,  and  no  formal  demand  was  necessary. 
Hodges  "ii  Railways,  642,  and  note;  South  Yorkshire  &  Goole  Railw.,  in  re  18 
Law  -lour.  (Q.  1>.)  53.  A  return  stating  an  excuse  for  non-compliance  with 
a  peremptory  writ  of  mandamus,  is  not  admissible.  Regina  v.'Ledgard  et  als. 
Mayor,  &c.  of  Poole,  1  Q.  B.  616.  Application  by  the  prosecutor  for  leave 
to  withdraw  his  plea  and  argue  the  case  on  the  return  refused.  R.  v.  Mayor 
of  York,  3  Q.  B.  550  ;  Strong,  Petitioner,  &c,  20  Pick.  484.  It  is  the  prac- 
tice for  different  persons,  in  the  same  or  similar  situation,  to  unite  in  the 
same  application  for  a  mandamus,  and  it  is  said  but  one  writ  can  issue  in 
such  a  case.  Rex  v.  Montacute,  1  Win.  Black,  60;  Rex  v.  Kingston,  1  Strange, 
578  (note  1)  ;  Scott  v.  Morgan,  8  Dowl.  P.  C.  328.  But  it  seems  to  be  consid- 
ered that  where  the  rights  are  distinct  and  wholly  independent,  one  writ  will 
not  be  awarded,  but  several,  and  therefore  the  application  should  be  several. 
Reg.  v.  Chester,  5  Mod.  11 ;  The  case  of  Andover,  2  Salk.  433 ;  Smith  v.  Erb,  4 
Gill  (Md.)  437  ;  State  v.  Chester  &  Evesham,  5  Halst.  292.  And  the  petitioner 
for  a  mandamus  must  set  forth  clearly  his  interest  in  the  matter  which  he  presents 
as  the  ground  of  his  application.  Fleming,  ex  parte,  2  Wallace  (U.  S),  759. 
But  several  connected  matters,  which  are  not  repugnant,  may  be  included,  by 
way  of  defence,  in  the  return.  Reg.  v.  Norwich,  2  Salk.  436;  Wright  v.  Faw- 
cett,  4  Burrow,  2041 ;  Rex  v.  Churchwardens  of  Taunton,  1  Cowp.  413.  Upon 
a  mandamus  to  restore  a  corporate  officer  to  his  functions,  the  return  should 
specify  the  grounds  of  the  amotion.  Commonwealth  v.  The  Guardians  of  the 
Poor  of  Philadelphia,  6  Serg.  &  Rawle,  469,  unless  the  officer  were  removable 
upon  the  mere  motion  of  the  corporation.  Rex  v.  Guardians  of  Thame,  1 
Strange,  115.  It  is  not  a  sufficient  reason  for  setting  aside  a  peremptory  man- 
damus that  a  previous  alternative  writ  had  not  issued.  Knox  County  v.  Aspin- 
wall,  24  How.  (U.  S.)  376. 

7  Queen  v.  Manchester  &  Leeds  Railw.,  8  Ad.  &  Ell.  413.  And  the  same 
rule  obtains  where  the  first  writ  is  denied  because  no  sufficient  demand  had  been 
made,  and  a  subsequent  demand  is  made.  Ex  parte  Thompson,  6  Q.  B.  721. 
But  it  is  apprehended  no  such  rule  of  practice  could  be  enforced  in  this  country, 
and  very  lew,  we  think,  would  regard  it  as  desirable.  It  seems  to  be  relaxing  in 
England,  where  the  alteration  of  the  affidavits  is  mere  form.  Regina  v.  The  G., 
W.  Railw.,  5  Q.  B.  597,  601 ;  Regina  v.  The  East  Lancashire  Railw.,  9  Q.  B. 
980.  And  in  Reg.  v.  Derbyshire,  S.  &  W.  Railw.,  18  Jur.  1054;  s.  c.  26  Eng. 
L.  &  Eq,  l'U,  the  writ  was  amended,  as  to  the  name  of  the  company.  Reg.  v. 
.n  Counties  Railw.,  2  Railw.  C.  836,  amendment  allowed.  Regina  v.  Jus- 
ticea  of  Warwickshire,  5  Dowl.  382;  Reg.  v.  Jones,  8  Dowl.  307  ;  Shaw  v.  Per- 
kins, 1  Dowl.  (X.  S.)  306;  Reg.  v.  Pickles,  3  Q.  B.  599,  n. ;  State  U.Hastings, 
10  W  i-.  .".is,  ,",25. 
L*G26] 


§  151.    GENERAL  RULES  OP  LAW  GOVERNING  THIS  REMEDY.     661 

5.  But  the  Common-law  Procedure  Acts  in  England,  1852, 
1854,  apply  to  this  class  of  writs,  and  have  essentially  simplified 
the  proceedings,  and  rendered  them  more  conformable  to  reason 
and  justice  than  in  some  of  the  American  courts  even,8  the  rule  for 
*the  issuing  of  the  alternative  writ  being  now,  in  all  cases,  made 
absolute  in  the  first  instance,  and  the  whole  hearing  had,  upon  the 
return  which  in  our  practice  is  still  further  simplified,  by  admitting 
the  party  to  make  answer  to  the  petition,  alleging  the  grounds  of 
his  refusal,  which  are  tried  at  once.9 

6.  If  falsehood  is  alleged  in  the  return  to  the  alternative  manda- 

8  And  by  23  and  24  Victoria,  Ch.  126,  §  32,  costs  are  to  be  allowed  against 
tbe  defendant  where  an  absolute  writ  is  granted,  unless  otherwise  specially 
directed  by  the  courts. 

9  Walter  v.  Belding,  24  Vt.  658 ;  Rogers,  ex  parte,  7  Cowen,  526.  In  the 
American  states  the  statute  of  9  Anne,  allowing  the  prosecutor  to  traverse 
the  return  to  the  writ  or  the  answer  to  the  petition,  and  for  the  court  to  deter- 
mine the  truth,  either  upon  affidavit  or  by  the  verdict  of  a  jury,  in  their  discre- 
tion, has  been  pretty  extensively  adopted,  either  in  practice  or  by  statute. 
The  People  v.  Beebe,  1  Barb.  Sup.  Ct.  379 ;  The  People  v.  The  Commission- 
ers of  Hudson,  6  Wend.  559;  Smith  v.  Commonwealth,  41  Penn.  St.  335. 
Where  the  case  is  fully  heard  upon  the  petition  or  rule  to  show  cause,  and  there 
is  no  dispute  in  regard  to  the  facts,  the  court  will  not  delay,  for  the  issuing 
of  the  alternative  writ  and  the  return  thereto,  but  will  in  the  first  instance  issue 
the  peremptory  mandamus.  Ex  parte  Jennings,  6  Cow.  518 ;  The  People  v. 
Throop,  12  Wend.  183.  The  rule  for  the  peremptory  mandamus  is  sometimes, 
in  the  first  instance,  made  nisi,  to  allow  the  respondents  to  consult,  if  they  will 
comply  with  the  requirements  of  the  judgment.  Walter  v.  Belding,  24  Vt.  658. 
Or  sometimes  this  is  done  to  allow  the  parties  to  arrange  the  matter,  or  the  court 
to  consider  the  case.  Rex  v.  Tappenden,  3  East,  186.  The  court  have  such  con- 
trol over  their  own  judgments,  that,  if  a  peremptory  writ  of  mandamus  be  unfairly 
obtained,  it  will  be  set  aside  upon  motion.  The  People  v.  Everett,  1  Caines,  8. 
Courts  enforce  compliance  with  the  peremptory  writ  by  attachment,  as  also  a 
return  to  the  alternative  writ,  without  requiring  the  issue  of  an  alias  and  pluries, 
as  in  the  early  English  practice.  The  cases  are  not  altogether  agreed,  whether 
defects  in  the  writ  are  cured  by  admissions  in  the  return,  but  upon  general  prin- 
ciples of  pleading  it  would  seem  they  are.  The  King  v.  Coopers  of  Newcastle- 
upon-Tyne,  7  T.  R.  548.  But  see  Reg.  v.  Hopkins,  1  Q.  B.  161.  But  where 
an  alternative  mandamus  is  issued,  and  the  defendants  make  their  return,  and 
the  relators,  instead  of  demurring,  take  issue  upon  the  material  allegations  in 
the  return,  they  thereby  admit  that,  upon  its  face,  the  return  is  a  sufficient 
answer  to  the  case  made,  by  the  alternative  writ.  And  if  no  material  fact  is  dis- 
proved upon  the  trial,  the  defendants  will  be  entitled  to  a  verdict  in  their  favor. 
The  people  ex  rel.  Kipp  v.  Finger,  24  Barb.  341.  The  return  should  set  forth  an 
available  justification  for  defendant's  refusal  to  do  the  act  sought  to  be  enforced, 
and  it  may  allege  different  independent  facts  as  furnishing  such  justification. 

[*627] 


662  MANDAMUS.  PART  VII. 

inns,  it  was  the  practice  at  common  law  to  drive  the  party  to  his 
acii.m  for  a  false  return.  But  by  statute  in  England,  and  generally 
by  practice  in  this  country,  the  question  is  tried  in  the  *  court  issuing 
the  writ,  and  the  remedy  there  applied,  damages  and  costs  being 
given  in  the  discretion  of  the  court,  and  execution  enforced. 

7.  Costs  in  all  the  proceedings  for  mandamus  rest  in  the  dis- 
cretion of  the  court,  unless  controlled  by  statute.  By  the  English 
practice  it  is  common  to  award  costs  where  the  application  is  de- 
nied, lint  not  always  where  it  prevails.10  The  more  general  and 
the  more  equitable  rule  in  regard  to  costs,  in  proceedings  where 
the  court  have  a  discretion,  in  that  respect,  is  to  allow  costs  to  the 
prevailing  party,  unless  tbere  is  some  special  reason  for  denying 
them.11 

8.  Service  of  such  process,  and  indeed  of  all  process,  by  sum- 

10  Reg.  v.  Mayor  of  Bridgenorth,  10  Ad.  &  El.  66 ;  Reg.  v.  The  Eastern 
Counties  Railw.,  2  Q.  B.  578,  579,  and  cases  cited  by  counsel.  Reg.  v.  East 
Anglian  Railw.,  2  El.  &  Bl.  475  ;  s.  c.  22  Eng.  L.  &  Eq.  274.  1  Win.  4,  c.  21, 
§  6,  makes  costs  discretionary  with  the  courts,  in  England.  23  and  24  Victoria, 
c.  126,  §  132.  Regina  v.  St.  Saviour,  7  Ad.  &  El.  925.  See  Regina  v.  Brigh- 
ton &  South  Coast  Railw.,  10  Law  T.  (N.  S.)  496. 

11  Reg.  v.  Thames  &  Isis  Commissioners,  8  Ad.  &  El.  901,  905;  5  Ad. 
&  El.  804 ;  Reg.  v.  Fall,  1  Q.  B.  636 ;  Reg.  v.  Justices  of  Middlesex,  6  Eng. 
L.  &  Eq.  267,  unless  strong  reasons  for  denying  costs  exist ;  1  Q.  B.  751. 
Where  the  prosecutor  omitted  to  proceed  with  a  mandamus  after  a  return  had 
been  made,  the  Court  of  Queen's  Bench  compelled  him  to  elect  either  to  pro- 
ceed or  pay  the  costs.  Reg.  v.  Mayor  of  Dartmouth,  2  Dowl.  (N  S.)  980.  If 
the  quo  warranto,  mandamus,  or  other  like  writ,  is  procured  by  the  real  party  in 
interest,  who  is  able  to  pay  costs,  to  be  prosecuted  by  some  one,  not  able  to  pay 
costs,  the  Court  of  Queen's  Bench  will  grant  a  rule,  requiring  the  real  party  to 
pay  costs.  Reg.  v.  Greene,  4  Q.  B.  646.  See  also  a  general  rule,  adopted 
immediately  after  the  decision  of  the  last  case,  Easter  Term,  1843,  requiring  a 
formal  rule,  for  payment  of  costs  in  mandamus,  to  be  drawn  up  immediately  on 
reading  all  the  affidavits  on  both  sides,  4  Q.  B.  653.  The  rule  for  costs  is 
decided  upon  the  reading  only  of  the  affidavits,  with  reference  to  which  the  rule 
is  drawn  up.  Reg.  v.  St.  Peter's  College,  1  Q.  B.  314,  overruling  Rex  v.  Kirke, 
5  B.  &  Ad.  1089.  The  parties  are,  in  the  English  cases,  required  to  pay  costs 
occasioned  by  their  delay.  Reg.  v.  Mayor  of  Cambridge,  .4  Q.  B.  801.  But 
where  the  judge  makes  a  mistake,  the  parties  who  come  to  defend  his  ruling, 
which  they  are  bound  to  suppose  correct,  do  not  pay  costs.  Reg  v.  London  & 
Blackwall  Railw.,  3  Railw.  C.  409,  and  note.  The  party  who  institutes  pro- 
ceedings for  mandamus,  which  he  is  compelled  to  abandon,  by  personal  misfor- 
tune, as  being  pauperized  by  the  loss  of  his  trade,  must  still  pay  costs,  as  the 
court  could  only  conclude  he  had  no  grounds  to  support  his  petition.  Reg  v. 
London  &  Blackwall  Railw.,  4  Jurist,  859.  See,  also,  Morse,  Petitioner,  18 
Pick.  448. 

[*628] 


§  151.    GENERAL  RULES  OF  LAW  GOVERNING  THIS  REMEDY.     663 

mons  in  England,  is  by  delivering  the  original  where  there  is  but 
*  one  person  summoned,  and  where  there  are  more  than  one,  by 
showing  the  original,  and  delivering  a  copy  to  each  defendant  but 
one,  and  the  original  left  with  such  one.  But  service  by  copy  of  a 
writ  of  mandamus  was  held  sufficient.12 

9.  By  the  later  English  statutes  upon  the  subject  of  mandamus,13 
any  party  requiring  any  order,  in  the  nature  of  specific  performance, 
may  commence  his  action  in  any  of  the  superior  courts  of  common 
law  in  Westminster  Hall,  except  in  replevin  and  ejectment,  and 
may  indorse  upon  the  writ  and  copy  to  be  served,  that  the  plaintiff 
intends  to  claim  a  writ  of  mandamus,  and  the  plaintiff  may  there- 
upon claim  in  the  declaration,  either  together  with  any  other  de- 
mand which  may  now  be  enforced  in  such  action,  or  separately,  a 
writ  of  mandamus,  commanding  the  defendant  to  fulfil  any  duty 
in  the  fulfilment  of  which  the  plaintiff  is  personally  interested. 
And  if  a  mandamus  is  awarded,  it  may  issue  peremptorily  in  the 
first  instance,  in  aid  of  the  execution,  for  damages  and  costs.  The 
form  of  the  writ  is  very  brief,  and  compliance  with  its  requisition 
is  to  be  enforced  by  attachment.  The  prerogative  writ  is  still  re- 
tained, but  its  use,  and  also  that  of  decrees  for  specific  perform- 
ance in  equity,  seem  to  be  superseded  by  these  provisions,14  at 
least  to  some  extent. 

12  Reg.  v.  Birmingham  &  Oxford  Railw.  Co.,  1  El.  &  Bl.  293;  s.  c.  16  Eng. 
L.  &  Eq.  94.  The  conductor  of  a  railway  train  in  some  of  the  states  is  regarded 
as  a  "  hired  agent"  of  the  company,  within  the  meaning  of  the  statute  allowing 
the  service  of  process  upon  such  agent.  New  Albany  &  Salem  Raiiw.  v. 
Grooms,  9  Ind.  243. 

13  17  &  18  Vict.  c.  125. 

14  A  mandamus  to  a  local  board  of  health,  constituted  under  11  &  12  Victoria, 
c.  63,  recited  that  the  prosecutor  had  been  injured  by  the  board  in  the  prosecu- 
tion of  its  powers  under  the  act;  that  he  had  demanded  compensation  from  the 
board,  and  that  they  had  denied  all  liability,  and  commanded  the  board  that,  com- 
pensation be  made  to  him  out  of  the  general  or  special  rate  to  be  levied  under 
the  act.  The  return  stated  that  the  board  had  not  denied  all  liability,  and  that 
it  was  always  ready  to  make  compensation,  as  soon  as  it  had  been  duly  ascer- 
tained under  the  act ;  that  it  had  not  as  yet  been  so  ascertained ;  nor  had  the 
prosecutor  as  yet  taken  any  steps  to  ascertain  the  amount,  nor  notified  the 
board  of  the  amount  of  his  claim,  nor  appointed  nor  given  notice  to  appoint  an 
arbitrator.  This  return  was  traversed,  generally ;  and  on  the  trial  it  was  found 
that  the  board  had  denied  all  liability,  and  a  verdict  was  entered  for  the  prosecutor. 
On  a  motion  to  enter  the  verdict  on  the  rest  of  the  return  for  the  board,  and  to 
enter  judgment  for  the  board  :  Held,  that  the  mandamus  was  good,  and  that  the 
prosecutor  was  entitled  to  a  verdict  on  the  whole  of  the  return,  and  to  a  per- 

[*629] 


664  MANDAMUS.  PART  VII. 


*  SECTION    II. 

Particular  cases  where  Mandamus  lies  to   enforce  Duty  of 
Corporations. 

§  152.  The  opinion  of  Jervis,  C.  J.  in  the  case  of  York  & 
North  Midland  Railway  v.  Reg.,1  is  perpaps  the  best  commentary 

emptory  mandamus,  on  the  ground  that,  as  there  did  not  appear  by  the  return 
to  be  any  dispute  as  to  the  amount,  the  rest  of  the  allegations  in  the  return, 
apart  from  the  traverse  of  denial  of  liability,  were  immaterial.  Regina  v.  Burs- 
lem  Board  of  Health,  5  Jur.  (N.  S.)  1394  ;  s.  c.  1  Ellis  &  Ellis,  1077,  1088.  And 
generally,  where  a  debt  is  of  such  a  nature  that  mandamus  will  be  granted  to 
enforce  its  payment,  it  is  not  necessary  that  the  amount  of  the  debt  should  be 
previously  ascertained,  but  su,ch  amount  may  be  ascertained  in  the  verdict  of  the 
jury  in  the  action  in  which  mandamus  is  claimed.  Ward  v.  Lowndes,  5  Jur. 
(N.  S.)  1124;  s.  c.  in  Exch.  Cham.  1  L.  T.  (N.  S.)  268;  1  Ellis  &  Ellis,  940. 
But  see  McCoy  v.  Harnett  County,  5  Jones  Law,  265. 

1  1  El.  &  Bl.  858;  s.  c.  18  Eng.  L.  &  Eq.  199.  "Upon  these  facts  several 
points  arise  :  First,  does  the  statute  of  1849  cast  on  the  plaintiffs  in  error  a  duty 
to  make  this  railway  ?  Secondly,  if  it  does  not,  is  there  under  the  circumstances 
a  contract  between  the  plaintiffs  in  error  and  the  land-owners,  which  can  be 
enforced  by  mandamus  ?  Thirdly,  and  tailing  these  propositions,  does  a  work, 
which  in  its  inception  was  permissive  only,  become  obligatory  by  part  perform- 
ance ?  These  questions  will  be  found  upon  examination  to  exhaust  the  subject, 
and  to  comprehend  every  view  in  which  the  mandamus  can  be  supported.  In 
substance,  do  these  acts  of  parliament  render  the  company,  if  they  do  not  make 
this  railway,  liable  to  an  indictment  for  a  misdemeanor,  and  to  actions  by  the 
party  aggrieved  ?  For  if  they  do  not,  ^a  mandamus  will  not  lie,  and  thus 
the  question  depends  entirely  upon  the  construction  of  the  special  act,  and  the 
statutes  incorporated  therewith.  The  act  of  1849  may  cast  the  duty  upon  the 
plaintiffs  in  error,  in  one  of  two  ways ;  it  may  do  so  by  express  words  of  obliga- 
tion, or  it  may  do  so  by  words  of  permission  only,  if  the  duty  can  be  clearly  col- 
lected from  the  general  purview  of  the  whole  statute.  The  words  of  the  3d 
section  of  the  act  of  1849,  '  it  shall  be  lawful  for  the  said  company  to  make  the 
said  railway,1  are  permissive  only,  and  not  imperative,  and  it  is  a  safe  rule  of 
construction  to  give  to  the  words  used  by  the  legislature  their  natural  meaning, 
when  absurdity  or  injustice  does  not  follow  from  such  a  construction.  Indeed, 
if  there  were  any  doubt  upon  this  subject,  other  parts  of  the  statute  referred  to 
in  the  argument  clearly  show  that  these  words  were  intended  to  be  permissive 
only.  The  distinction  is  well  put  by  my  brother  Erie:  'The  company  are  per- 
mitted at  their  option  to  take  lands,  turn  roads,  alter  streams,  and  exercise  other 
powers,  and  these  matters  are  made  lawful  for  them  ;  but  they  are  commanded  to 
make  compensation  for  lands  taken,  to  substitute  roads  for  those  they  turn,  and 
to  perform  other  conditions  relating  to  the  exercise  of  their  powers,  and  these 

[*630] 


§  152.      CASES  TO  ENFORCE  DUTY  OP  CORPORATIONS.        665 

*  we  could  give  upon  the  present  state  of  the  English  law  upon 
this  subject. 

matters  are  required  of  them.'  It  seems  clear,  therefore,  that  the  duty  is  not 
cast  upon  the  plaintiffs  in  error  by  the  express  words  of  the  statute  of  1849; 
and,  indeed,  it  was  not  so  urged  in  the  argument ;  nor  was  it  so  put  by  Lord 
Campbell  in  his  judgment  in  the  court  below.  But  it  does  not  follow,  merely 
because  the  words  of  the  3d  section  are  permissive  only,  that  there  is  no  duty 
cast  upon  the  plaintiffs  in  error,  by  the  statute  taken  altogether,  to  make  this 
railway.  This  point  was  not  relied  upon  in  this  case  in  the  court  below,  but  it 
was  made  the  distinct  ground  of  a  decision  in  another  case  in  that  court  (The 
Queen  v.  The  Lancashire  &  Yorkshire  Railw.  Co.),  and  was  much  pressed  in  the 
argument  before  us  in  support  of  this  judgment. 

"  It  becomes  necessary,  therefore,  to  examine  the  statute  in  its  general  pro- 
visions, and  to  consider  the  grounds  on  which  the  Court  of  Queen's  Bench  pro- 
ceeds in  the  case  of  the  Queen  v.  The  Lancashire  &  Yorkshire  Railw.  Co.,  1  E. 
&  B.  228  ;  16  Eng.  L.  &  Eq.  328.  We  agree  with  Lord  Campbell,  that  the  por- 
tion of  the  line  between  Market  Weighton  and  Cherry  Burton,  to  which  the 
mandamus  applies,  is  not  to  be  considered  as  a  separate  railway,  or  even  as  a 
separate  branch  of  a  railway,  but  it  is  to  be  treated  as  if  in  its  present  direction 
it  had  been  included  in  the  act  of  1846.  The  acts,  then,  taken  together,  in  sub- 
stance, recite  that  it  will  be  an  advantage  to  the  public  if  a  railway  is  made  from 
York  to  Beverley,  through  Market  Weighton  and  Cherry  Burton,  according  to 
certain  plans  and  sections  deposited,  as  required  by  the  practice  of  parliament, 
and  referred  to  in  the  statute,  and  that  the  plaintiffs  in  error  are  willing  to  make 
that  railway.  On  this  basis  the  whole  provisions  are  founded.  It  has  been 
proved  that  the  work  will  be  advantageous  to  the  public ;  it  is  assumed  it  will  be 
profitable  to  the  company,  and  that,  therefore,  they  will  willingly  undertake  it. 
Accordingly,  the  company  are  empowered  to  make  this  line.  If  they  do  make 
it  they  may  take  land  ;  but  if  they  do  take  land  they  must  make  compensation. 
If  necessary,  they  may  turn  roads,  or  divert  streams ;  but  if  they  do,  they  must 
make  new  roads  and  new  channels  for  the  streams  they  alter.  Similar  provisions 
pervade  the  whole  statute,  and  throughout  the  command  waits  upon  the  authority, 
and  the  distinction  between  '  may'  and  'must'  is  clearly  defined.  But  as  it  is 
manifest  that  such  general  powers  must  stop  competition,  and  may,  to  a  certain 
extent,  be  injurious  to  land-owners  on  the  line,  the  compulsory  power  to  take 
land  is  limited  to  three  years,  and  the  time  for  making  the  railway  to  five,  after 
which  the  powers  granted  to  the  company  cease,  except  as  to  so  much  of  the  line 
as  shall  have  been  completed,  and  the  land,  if  taken  by  the  company,  reverts, 
on  certain  terms,  to  the  original  proprietors.  An  argument  might  have  been 
founded  on  the  terms  in  which  the  latter  provision  is  contained.  By  the  10th 
section  of  the  act  of  1849,  it  is  enacted  that  the  railway  shall  be  completed 
within  five  years  from  the  passing  of  this  act.  That  section  was  not  referred  to 
in  the  argument  for  this  purpose,  but  it  might  be  said  that  these  words  were  com- 
pulsory, and  imposed  a  duty  upon  the  company  to  make  the  line.  The  context 
of  the  section,  however,  when  examined,  shows  that  such  is  not  the  meaning  of 
it.  If  not  completed  within  five  years,  the  powers  of  the  act  are  to  expire, 
except  as  to  so  much  of  such  railway  as  shall  have  been  completed.     If  the 

[*631] 


WG 


MANDAMUS. 


PART  VII. 


♦SECTION     III. 


Mandamus  the  appropriate  Remedy  to  Restore  Officers  and  Mem- 
bers of  Corporations  to  the  Discharge  of  their  proper  Functions, 
where  they  have  been  deprived  of  the  same  through  the  agency  of 
the  Corporation. 


1.   The  writ  formerly  granted  only  to  restore 

to  public  office. 
'_'.   Novo  granted  in  all  cases  where  of  value 

and  sufficiently  permanent. 


3.  Not  available,  where  election  annual  and 

facts  traversed.    ' 
i.   Claimant  must  have  permanent  and  vested 

interest. 


§  153.  1.  It  does  not  come  within  the  scope  of  this  work  to  ex- 
amine with  minuteness  all  questions  arising  upon  the  law  of  cor- 

section  were  intended  to  be  obligatory,  it  would  not  contain  that  exception 
which  contemplates  that  the  line  may  be  made  in  part.  It  is  inconsistent  to  sup- 
pose that  the  legislature  would  say  to  the  company  in  the  same  section,  you  may 
complete  a  part  only,  if  you  can,  in  five  years,  and  then  as  to  that  part  the 
powers  of  the  act  shall  continue,  but  you  must  complete  the  entire  line  in  that 
time.  Upon  the  whole,  therefore,  we  find  no  duty  cast  upon  the  company 
to  make  this  railway  in  any  part  of  this  act  of  parliament.  On  the  contrary,  the 
Legislature  seems  to  contemplate  the  possibility  of  the  railway  being  made 
in  part,  or  being  totally  abandoned.  In  the  latter  case  the  powers  expire 
in  three  or  five  years  ;  in  the  former,  the  statute  remains  in  force  as  to  so  much 
of  the  railway  as  shall  have  been  completed  within  that  time,  and  expires  as  to 
the  residue.  This  provision  is  inconsistent  with  the  intention  to  compel  the 
company  to  make  the  entire  line,  as  the  consideration  for  the  powers  granted  by 
the  act. 

"  But  it  is  said  that  a  railway  act  is  a  contract  on  the  part  of  the  company  to 
make  the  line,  and  that  the  public  is  a  party  to  that  contract,  and  will  be  ag- 
grieved if  the  contract  may  be  repudiated  by  the  company  at  any  time  before  it 
is  acted  upon.  Though  commonly  so  spoken  of,  railway  acts,  in  our  opinion,  are 
not  contracts,  and  cannot  be  construed  as  such.  They  are  what  they  purport  to 
be,  and  no  more.  They  give  conditional  powers,  which,  if  acted  upon,  carry 
with  them  duties,  but  which,  if  not  acted  upon,  are  not,  either  in  their  nature  or 
by  express  words,  imperative  on  the  companies  to  which  they  are  granted. 
Courts  of  justice  ought  not  to  depart  from  the  plain  meaning  of  the  words  used 
in  acts  of  parliament.  When  they  do,  they  make  but  do  not  construe  the  laws. 
If  it  had  been  so  intended,  the  statute  should  have  required  the  companies  to 
make  the  line  in  express  terms ;  indeed,  some  railway  acts  are  framed  upon  this 
principle  ;  and  to  say  that  there  is  no  difference  between  words  of  requirement 
and  words  of  authority  when  found  in  such  acts,  is  simply  to  affirm  that  the 
legislature  does  not  know  the  meaning  of  the  commonest  expressions.  But  if 
we  were  at  liberty  to  speculate  upon  the  intentions  of  the  legislature  when  the 
[*632] 


§  153.  REMEDY   TO    RESTORE    OFFICERS    AND    MEMBERS.  667 

porations,  *  as  affected  by  the  writ  of  mandamus.  But  it  may  be 
useful   to  state  that  this  is  the   appropriate   remedy,  where  any 

words  are  cl^r,  and  to  construe  an  act  of  parliament  by  our  own  notions  of 
what  ought  to  have  been  enacted  upon  the  subject,  —  if,  sitting  in  a  court  of 
justice,  we  could  make  laws,  much  might  be  said  in  favor  of  the  course  which, 
in  our  opinion,  is  taken  by  the  legislature  on  such  subjects.  Assuming  that  the 
line,  if  made,  would  be  profitable  to  the  public,  that  benefit  may  be  delayed  for 
five  years,  during  which  time  competition  is  suspended.  On  the  other  hand,  if 
the  line  would  pay,  it  probably  will  be  proceeded  with,  unless  the  company 
having  the  power  is  incompetent  to  the  task.  Individual  land-owners  may  be 
benefited  by  the  expenditure  of  capital  in  their  neighborhood,  without  looking 
to  the  ultimate  result ;  but  it  is  not  for  the  public  interest  that  the  work  should 
be  undertaken  by  an  incompetent  company,  nor  that  it  should  be  begun,  if,  when 
made,  it  would  not  be  remunerative.  By  leaving  the  exercise  of  the  powers 
to  the  option  of  the  company,  the  legislature  adopts  the  safest  check  on  abuse  in 
either  of  those  respects,  namely,  self-interest.  It  seems  to  us,  therefore,  that 
these  statutes  do  not  cast  upon  the  plaintiffs  in  error  the  duty,  either  by  express 
words  or  by  implication ;  that  we  ought  to  adhere  to  the  plain  meaning  of  the 
words  used  by  the  legislature,  which  are  permissive  only,  and  there  is  no  reason, 
in  policy  or  otherwise,  why  we  should  endeavor  to  pervert  them  from  their 
natural  meaning. 

"  But  it  is  said  that  the  land-owners  are  in  a  better  situation  than  the  public 
at  large,  and  that  the  privilege  to  take  their  own  lands  is  the  consideration  which 
binds  the  company  to  complete  the  railway.  That  during  the  currency  of  the 
three  years  they  are  deprived  of  their  full  rights  of  ownership,  and,  if  not  to  be 
compensated  by  the  construction  of  the  railway,  they  would  in  many  cases  suffer 
a  loss,  because,  whilst  the  compulsory  power  of  purchase  subsists,  they  are  pre- 
vented from  alienating  their  lands  or  houses  described  in  the  books  of  reference, 
and  from  applying  them  to  any  purposes  inconsistent  with  the  claim  that  may  be 
made  to  them  by  the  railway  company.  In  truth,  they  are  not  prevented  from 
so  doing  at  any  time  before  the  notice  to  take  their  land  is  given,  if  they  act 
bona  fide  in  the  mean  time  ;  the  notice  to  take  their  lands  being  the  inception  of 
the  contract  between  the  land-owners  and  the  company.  But  if  this  complaint 
was  better  founded,  it  does  not  follow,  because  certain  land-owners  are  subjected 
to  temporary  inconvenience  for  the  performance  of  a  public  good,  that  therefore 
the  company  are  bound  to  make  the  whole  railway.  If  it  were  a  contract  be- 
tween the  land-owners  and  the  company,  it  would  not  be  just  the  one  should  be 
bound  and  the  other  free.  But  to  assert  that  there  is  a  contract  between  the 
land-owners  and  the  company,  is  to  beg  the  whole  question  ;  for  on  this  part  of 
the  case  the  question  is,  whether  there  is  such  a  contract.  As  a  matter  of  fact, 
we  know  that  in  many  cases  no  such  actual  contract  exists.  Some  few  proprie- 
tors may  desire  and  promote  the  railway,  but  many  others  oppose  it,  either  from 
disinclination  to  the  project  or  with  a  view  to  make  better  terms.  With  the  dis- 
sentients there  is  no  contract,  unless  it  be  found  in  the  statute,  and  to  the  statute 
therefore  we  must  look  to  see  what  is  the  obligation  that  is  cast  upon  the  company 
in  respect  of  the  land-owners  upon  the  line.  As  in  the  former  case,  the  words 
upon  this  subject  are  permissive  only.     The  company  may  take  land  ;  if  they  do 

[*633] 


668  MANDAMUS.  PART  VII. 

*  member  or  officer  of  a  corporation  is  unlawfully  deprived  of  his 
proper  office  or  function  in  the  affairs  of  the  company  through 

they  must  make  full  compensation.  And  in  that-state  of  things,  if  there  be  a 
bargain  between  the  parties,  what  is  the  bargain?  The  company  say,  in  tlie  lan- 
guage of  the  statute,  that  the  bargain  is  thai  they  shall  make  full  compensation 

for  the  land  taken,  and  no  more;  the  prosecutors  say,  that  the  consideration  to 
be  paid  for  the  land  is  the  full  compensation  mentioned  in  the  act,  and  also  the 
fin  tlicr  consideration  of  the  construct  ion  of  the  entire  line  of  railway  from  York 
to  Beverley.  But  if  this  is  the  price  which  the  prosecutors  are  to  have,  each  land- 
owner is  entitled  to  the  same  value,  and  yet  by  this  mandamus  the  other  proprie- 
tors on  the  line  from  Market  Weighton  to  Cherry  Burton,  who  perhaps  are  hostile 
to  the  application,  are  constrained  to  sell  their  lands  for  an  inadequate  consid- 
eration, namely,  the  full  compensation  and  a  part  only  of  the  line  of  railway,  to 
which,  by  the  hypothesis,  they  were  entitled  by  the  original  bargain.  If  this 
were  the  true  meaning  of  the  statute,  it  would  indeed  be  unjust,  more  so  than 
the  imposition  of  the  temporary  inconvenience  to  which  it  is  said  the  land-owners 
may  be  subject,  and  to  which  we  have  already  referred.  But  that  that  is  not  the 
true  meaning,  is  clear  from  the  words  of  the  statute,  which  are  permissive,  and 
only  impose  the  duty  of  making  full  compensation  to  each  land-owner,  as  the 
option  of  taking  the  land  of  each  is  exercised ;  and  further,  from  the  section  to 
which  we  have  already  referred,  which  contemplates  the  total  abandonment  of 
the  line,  or  a  part  performance  of  it,  and  makes  provision  for  the  return  of  the 
land  to  the  original  proprietors  in  certain  cases.  Upon  this  part  of  the  case  the 
authority  of  Lord  Eldon,  in  Blakemore  v.  The  Glamorganshire  Canal  Company, 
1  Myl.  &  K.  154,  was  much  pressed  upon  the  court.  Speaking  of  contracts  for 
private  undertakings  he  says  :  '  When  I  look  upon  these  acts  of  parliament  I  re- 
gard them  all  in  the  light  of  contracts  made  by  the  legislature  on  behalf  of  every 
person  interested  in  any  thing  to  be  done  under  them,  and  I  have  no  hesitation 
in  asserting  that,  unless  that  principle  be  applied  in  construing  statutes  of  this 
description,  they  become  instruments  of  greater  oppression  than  any  thing  in  the 
whole  system  of  administration  under  our  constitution.  Such  acts  of  parliament 
have  now  become  extremely  numerous,  and  from  their  number  and  operation 
they  so  much  affect  individuals,  that  I  apprehend  those  who  come  for  them  to 
parliament  do,  in  effect,  undertake  that  they  shall  do  and  submit  to  whatever  the 
legislature  empowers  and  compels  them  to  do,  and  that  they  shall  do  nothing  else  ; 
that  they  shall  do  and  forbear  all  that  they  are  hereby  required  to  do  and  for- 
bear, as  well  with  reference  to  the  interest  of  the  public  as  with  regard  to  the 
interest  of  individuals.'  There  is  nothing  in  that  language  to  which  it  is  neces- 
sary to  make  the  least  exception  ;  indeed  it  is  nothing  more  than  an  illustration 
of  the  obligatory  nature  of  the  duty  imposed  by  acts  of  parliament,  which  do  im- 
pose a  duty  with  reference  to  other  persons.  In  that  case  the  statute  had  secured 
to  Mr.  Blakemore  the  surplus  water,  and  had  commanded  the  company  to  do 
certain  things  that  he  might  enjoy  it.  In  discussing  whether  Mr.  Blakemore's 
right  under  the  statute  was  affected  by  his  right  before  the  statute,  his  lordship 
might  well  say  he  considered  the  statute  the  origin  of  Mr.  Blakemore's  right  in 
the  light  of  a  contract,  and  the  statute  then  under  discussion  containing  express 
words  of  command,  he  might  well  add,  that  those  who  come  lor  such  acts  of  Par- 

[*629] 


§  153.  REMEDY    TO    RESTORE    OFFICERS    AND    MEMBERS.  669 

*  its  agency.     This  is  somewhat  questioned  by  some  of  the  earlier 

English  cases.1 

liament  do,  in  effect,  undertake  that  they  shall  do  and  submit  to  whatever  the 
legislature  empowers  and  compels  them  to  do.  As  we  understand  them,  the 
words  used  by  Lord  Eldon  in  no  respect  conflict  with  the  view  we  take  of  this 
case  ;  but  if  they  mean  that  words  of  permission  only,  when  used  in  the  class  of 
cases  under  consideration,  should  receive  a  construction  different  from  their 
ordinary  meaning,  because,  if  construed  otherwise,  they  might  work  injustice, 
with  great  respect  for  his  high  authority,  we  dissent  from  that  proposition.  We 
agree  with  my  brother  Alderson,  who,  in  Lee  v.  Milner,  2.  Y.  &  Coll,  611,  said : 
'  These  acts  of  parliament  have  been  called  parliamentary  bargains,  made  with 
each  of  the  land  owners.  Perhaps  more  correctly  they  ought  to  be  treated  as 
conditional  powers  given  by  parliament  to  take  the  lands  of  the  different  pro- 
prietors through  whose  estates  the  works  are  to  proceed.  Each  land-owner, 
therefore,  has  the  right  to  have  the  power  strictly  and  literally  carried  into  effect 
as  regards  his  own  land,  and  has  the  right  also  to  require  that  no  variations  shall 
be  made  to  his  prejudice  in  the  carrying  into  effect  a  bargain  between  the  under- 
takers and  any  one  else.'  —  '  This,'  he  adds,  '  I  conceive  to  be  the  real  view  taken 
of  the  law  by  Lord  Eldon,  in  the  case  of  Blakemore  v.  The  Glamorganshire 
Canal  Company.'  There  remains  but  one  further  view  of  the  case  to  be  con- 
sidered, and  that  we  have  partly  disposed  of  in  the  observations  we  have  already 
made  ;  but  inasmuch  as  Lord  Campbell  proceeded  on  this  ground  only  in  the 
court  below,  although  it  was  not  much  relied  upon  before  us  in  the  argument, 
we  have,  out  of  respect  for  his  high  authority,  most  carefully  examined  it,  and 
are  of  opinion  that  the  mandamus  cannot  be  supported,  on  the  ground  that  the 
railway  company,  having  exercised  some  of  their  powers  and  made  a  part  of  their 
line,  are  bound  to  make  the  whole  railway  authorized  by  their  statutes. 

"It  is  unnecessary  here  to  determine  the  abstract  proposition,  that  a  work 
which,  hefore  it  is  begun,  is  permissive,  is,  after  it  is  begun,  obligatory.  We 
desire  not  to  be  understood  as  assenting  to  the  proposition  of  my  brother  Erie, 
that  many  cases  may  occur  where  the  exercise  of  some  compulsory  powers  may 
create  a  duty  to  be  enforced  by  mandamus  ;  and,  on  the  other  hand,  we  do  not 
say  that  such  may  not  be  the  law.  If  a  company,  empowered  by  act  of  parliament 
to  build  a  bridge  over  the  Thames,  were  to  build  one  arch  only,  it  would  be  well 
deserving  consideration  whether  they  could  not  be  indicted  for  a  nuisance  in 
obstructing  the  river,  or  for  the  non-performance  of  duty  in  not  completing  the 
bridge.  It  is  sufficient  to  say  that  in  this  case  there  are  no  circumstances  to  raise 
such  a  duty,  if  such  a  duty  can  be  created  by  the  acts  of  plaintiff  himself.  The 
plaintiffs  in  error  have  made  the  principal  portion  of  their  line,  and  they  have 
abandoned  the  residue  for  no  corrupt  motive,  but  because  Beverley  has  already 
sufficient  railway  communication,  and  because  the  residue  of  the  line  passes 
through  a  country  thinly  populated,  and  if  made  would  not  be  remunerative. 
But  it  is  said  that  the  railway  company  are  not  in  the  situation  of  purchasers  of 


1  Vaughn  v.  Company  of  Gunmakers,  6  Mod.  82  ;  S.  P.  Comb.  45  ;  White's 
case,  6  Mod.  18. 

[*635] 


670  MANDAMUS.  PART  VII. 

*  2.  But  a  different  rule,  as  to  requiring  the  office  to  be  of  a  pub- 
lic nature  to  justify  the  writ  of  mandamus  to  restore  the  party  to 

land,  with  liberty  to  convert  it  to  any  purpose,  or  to  allow  it  to  be  waste;  that 
they  are  allowed  to  purchase  it  only  for  a  railway,  and  having  acquired  it  under 
the  compulsory  power  of  the  act,  there  must  be  an  obligation  upon  the  company 
to  apply  the  land  to  that  and  to  no  other  purpose.  Subject  to  the  qualification 
in  the  act,  this  is  undoubtedly  true.  Having  acquired  the  lands  of  particular 
land-owners,  the  company  could  not  retain  them  byr  merely  laying  rails  on  the 
lands  so  taken,  and  we  agree  it  never  was  intended  that  the  land-owners  should 
be  left  with  a  high  mound  or  a  deep  cutting  running  through  their  estate,  and 
leading  neither  to  nor  from  any  available  terminus.  The  precaution  against  such 
a  wasteful  expenditure  of  capital  may,  perhaps,  safely  be  left  to  the  self-interest 
of  the  company,  but  if  such  work  were  to  be  done,  it  would  not  be  a  practicable 
railway,  and  after  five  years  the  powers  of  the  act  would  expire,  and  the  land 
revest  in  the  original  proprietor.  It  is  true  that  he  would  sustain  some  inconven- 
ience without  the  corresponding  advantage  of  railway  communication,  but  in  the 
mean  time  he  would  have  received  full  compensation  in  the  market  value  of  the 
land,  and  for  all  damage  by  severance  or  otherwise,  and  would  receive  back 
the  land  on  more  reasonable  terms.  To  be  a  railway  it  must  have  available 
termini.  When  the  statutes  passed,  all  persons  supposed  the  termini  would  be 
York  and  Beverley ;  and  if  the  arguments  be  well  founded,  and  the  company  are 
bound,  if  they  take  the  land  upon  any  portion  of  the  railway,  to  complete  the 
whole  line,  it  would  seem  to  follow  that  one  of  the  proprietary,  by  compelling 
the  company  to  take  his  land  on  the  line  from  Market  Weighton  to  Cherry- 
Burton,  would  thus  entitle  himself  to  a  mandamus  to  compel  them  to  make  the 
line  from  Cherry  Burton  to  Beverley,  and  the  acts  having  expired,  to  apply  to 
Parliament  for  a  renewal  of  their  powers  for  that  purpose.  But  although  the 
termini  were  originally  intended  to  be  York  and  Beverley,  it  is  plain  that  the 
legislature  contemplated  the  possibility  of  the  line  being  abandoned  or  being 
only  partially  made,  because  in  the  one  case  the  powers  of  the  act  were  to  cease, 
and  in  the  other  they  were  partially  continued.  An  option,  therefore,  is  given  to 
some  one.  By  the  course  taken  the  Court  of  Queen's  Bench  has  exercised  that 
option,  and  said  the  line  is  to  be  made,  not  to  Beverley,  but  to  Cherry  Burton. 
In  our  opinion  that  option  is  left  to  the  company,  and  the  company  having  bona 
fide  made  an  available  railway  over  the  land  taken,  the  obligation  to  the  land- 
owner has,  in  that  respect,  been  fulfilled.  The  cases  upon  this  subject  are  very 
few,  and  the  absence  of  authority  is  very  striking,  when  we  remember  how  many 
acts  have  passed  in  pari  materia,  not  only  for  railways,  but  also  for  bridges  and 
turnpike  roads.  Notwithstanding  the  numerous  occasions  on  which  such  proceed- 
ings might  have  been  taken,  and  the  manifest  interest  of  land-owners  to  enforce 
their  rights,  no  instance  can  be  found  of  an  indictment  for  disobeying  such  a 
statute,  or  of  a  mandamus  for  the  purpose  of  enforcing  it.  If  correctly  reported, 
Lord  Mansfield  determined  this  point  in  The  King  v.  The  Proprietors  of  the 
Birmingham  Canal,  2  Wm.  B.  708,  for  he  says  the  act  imports  only  an  authority 
to  the  proprietors,  not  a  command.  They  may  desert  or  suspend  the  whole 
work,  and  a  fortiori,  any  part  of  it.  On  the  other  side,  the  language  of  Lord 
Etdon,  in  Blakemore  v.  The  Glamorganshire  Canal  Company,  is  referred  to  as 

[*686J 


§  153.  REMEDY    TO    RESTORE    OFFICERS    AND    MEMBERS.  671 

*  it,  seems  to  have  obtained  since  the  case  of  Rex  v.  Barker,2  and 
the  only  proper  inquiry  now  is  whether  the  plaintiff  has  any  such 
valuable  and  permanent  interest  in  the  office  or  place  as  to  justify 
the  granting  of  the  writ.3 

3.  It  was  held,  in  -  an  early  case 4  in  Massachusetts,  that  this 
remedy  could  not  be  rendered  available  in  cases  where  the  office 
only  extended  to  one  year,  and  the  question  arising  upon  the  re- 
turn of  the  writ  was  one  of  fact,  the  traverse  to  which  could  not, 
according  to  the  course  of  practice  in  that  court,  be  determined 
before  the  term  of  the  office  would  expire.  "  The  cases,  there- 
fore," say  the  court,  "  in  which  the  writ  of  mandamus  may  be  an 
adequate  remedy,  in  admitting  or  restoring  to  office,  seem  to  be 
where  the  office  is  holden  for  a  longer  term  than  a  year,  or  where 
the  return  to  the  writ  will  involve  merely  a  question  of  law,  so  that 
admitting  the  facts  to  be  true,  a  peremptory  mandamus  ought 
to  go." 

4.  It  was  accordingly  held,  in  an  English  case,5  that  as  man- 
damus to  reinstate  a  person  in  office  only  lies  where  the  office 
and  its  tenure  are  of  a  permanent  nature,  it  is  not  an  available 
remedy  for  the  secretary  of  a  benefit  society,  who  had  been  dis- 

an  authority  for  this  mandamus.  In  our  opinion  it  does  not  bear  that  construc- 
tion, although  it  appears  that  the  Court  of  Queen's  Bench  took  a  different  view 
of  that  authority  in  the  case  of  The  Queen  v.  The  Eastern  Counties  Railw.  Com- 
pany, 10  Ad.  &  El.  531,  and  was  inclined  to  act  upon  it,  and  award  a  mandamus. 
The  writ  was  subsequently  withheld  in  that  case  on  another  ground,  but  Lord 
Denman  seems  to  have  been  of  opinion  that  on  a  fit  occasion  a  mandamus  ought 
to  go.  That,  and  the  recent  cases  in  the  Queen's  Bench,  now  under  discussion, 
are  the  only  cases  which  bear  upon  the  subject.  We  feel  that  Lord  Denman  and 
Lord  Campbell  are  high  authorities  upon  this  or  any  other  matter,  and  are  both 
equally  entitled  to  the  respect  of  this  court ;  but  we  are  bound  to  pronounce  our 
own  judgment,  and,  after  the  most  careful  consideration,  are  of  opinion  that  the 
judgment  ought  to  be  for  the  plaintiffs  in  error.  The  result  is,  that  the  judgment 
of  the  court  below  must  be  reversed." 

2  3  Burrow,  1267. 

3  Angell  &  Ames,  §§  704,  705. 

4  Howard  v.  Gage,  6  Mass.  462,  464. 

5  Evans  v.  The  Heart  of  Oak  Benefit  Society,  12  Jur.  (N.  S.)  163.  Mandamus 
is  the  proper  remedy  to  compel  the  former  officers  of  a  corporation  to  surrender 
to  the  newly  elected  board  of  officers,  the  books  and  papers  of  the  company,  to- 
gether with  all  the  insignia  of  office  properly  belonging  to  them.  American  Kail- 
way  Frog  Co.  v.  Haven,  101  Mass.  398.  The  general  scope  and  operation  of  tbis 
remedy  is  here  very  ably  and  learnedly  discussed  by  Mr.  Justice  Ames ;  s.  c.  1. 
Redf.  Am.  Railw.  Cases,  479. 

[*637] 


672 


MANDAMUS. 


PART  VII. 


missed  by  a  resolution  of  a  meeting  of  the  society.  The  court  here 
seem  to  consider  that  the  office  must  be  of  such  a  character  that 
the  incumbent  has  such  a  vested  and  permanent  interest  in  the 
same  as  that  the  court  could  render  the  operatio.n  of  the  writ  of 
mandamus  effective  towards  restitution,  and  where  its  operation  is 
not  liable  to  be  countervailed  by  any  counter  agency. 


♦SECTION    IV. 


Mandamus  to  compel  Company  to  complete  their  Road. 


1.  English  courts  have  required  this  upon  a 

general  grant. 

2.  But  these  cases  overruled.     Not  required 


now,    unless    under   peculiar    circum- 
stances. 
3.  Recent  case  in  New  York  Court  of  Appeals. 


§  154.  1.  The  English  courts  at  one  time,  it  would  seem,  regarded 
a  parliamentary  grant  to  and  acceptance  by  a  railway  company  as 
equivalent  to  an  agreement  on  their  part  to  build  the  road.  To  make 
this  intelligible  to  the  American  reader  it  is  necessary  to  keep  in 
mind  the  English  parliamentary  rules,  in  regard  to  passing  acts  of 
incorporation  of  such  companies.  The  promoters  are  required  to 
prepare  plans  and  sections,  and  maps  of  their  roads,  with  the  line 
delineated  thereon,  so  as  to  show  its  general  course  and  direction, 
and  to  deposit  copies  of  the  same  with  the  clerks  of  the  peace,  in 
the  office  of  the  Board  of  Trade,  the  Private  Bill  Office,  in  certain 
cases  at  the  Board  of  Admiralty,  and  with  the  parish  clerk  of  each 
parish  through  which  the  proposed  line  passes,  before  parliament 
assembles,  and  the  plans  are  usually  referred  to  in  the  charter  as 
defining  the  course  of  such  railway,  and  thus  become  binding  upon 
the  company,  although  not  so  regarded  unless  so  referred  to.1 
Specific  notice  too  is  to  be  served  upon  each  land  proprietor  whose 
land  is  to  be  taken.1  There  is  therefore  some  plausibility  in  re- 
garding the  obtaining  of  a  charter  under  these  circumstances  as  a 
binding  obligation  on  the  part  of  the  company  that  they  will  build 
the  road.  No  act  of  incorporation  of  a  railway  is  passed  in  the 
British  parliament  until  three-fourths  of  the  estimated  outlay  is 

Ilorlges  on  Railways,  18,  and  notes;  North  British  Railw.  Co.  v.  Tod,  5 
Bell  Ap.  Cas.  184  ;  s.  c.  4  Railw.  Cas.  449  ;  Reg.  v.  The  Caledonian  Railw.  Co., 
3  Eng.  L.  A:  Eq.  285. 
[*638] 


§  154.  COMPEL   COMPANY   TO    COMPLETE   THEIR   ROAD.  673 

subscribed.  Accordingly,  in  some  of  the  earlier  cases  upon  this 
subject,  after  considerable  discussion  and  examination,  it  is  laid 
down,2  that  when  a  railway  company  have  obtained  an  act  of  par- 
liament, *  reciting  that  the  proposed  railway  will  be  beneficial  to  the 
public,  and  that  the  company  are  willing  to  execute  it,  and  giving 
them  compulsory  powers  upon  landbolders  for  that  purpose,  and 
in  pursuance  of  such  powers  the  company  have  taken  land,  and 
made  part  of  their  line,  they  are  bound  by  law  to  complete  such 
line,  not  only  to  the  extent  to  which  they  have  taken  lands,  but  to 
the  furthest  point.  And  this  is  so  held  in  some  cases,  although 
the  statute  enacts  only  that  it  shall  be  lawful  for  them  to  make  the 
railway. 

2.  So  also  in  another  case,3  where  the  undertaking  was  not  yet 
entered  upon,  it  was  held  that  the  company  under  such  circum- 
stances were  bound  to  execute  the  work,  from  the  time  when  such 
act  receives  the  royal  assent.  And  in  another  case,4  where  by  the 
return  to  the  writ  it  appeared  that  the  company  had  no  sufficient 
funds  to  build  the  road,  and  that  the  period  for  exercising  tbeir 
compulsory  powers  in  obtaining  lands  had  expired,  and  that  the 
building  of  the  road  had  thus  become  impossible,  it  was  held  that 
a  mandamus  must  nevertheless  be  awarded.  Writs  of  peremptory 
mandamus  issued  in  each  of  the  foregoing  cases.  But  the  first 
and  last  of  these  three  cases  came  before  the  Exchequer  Chamber, 
and  were  heard  at  great  length  before  all  the  judges,  and  an  elab- 
orate opinion  delivered  by  Jervis,  C.  J.,  of  the  Common  Bench, 
reversing  the  judgment  of  the  Queen's  bench,  chiefly  on  the  ground 

2  The  Queen  v.  The  York  &  North  Midland  Railw.  Co.,  16  Q.  B.  19;  s.  c. 
16  Eng.  L.  &  Eq.  299.  This  was  decided  by  a  divided  court,  Erie,  J.,  dissent- 
ing, whose  opinion  ultimately  prevailed  in  the  Exchequer  Chamber.  Lord  Gamp- 
bell,  C.  J.,  and  the  majority  of  the  court,  founded  their  opinion  chiefly  upon  the 
celebrated  judgment  of  Lord  Eldon,  in  Blakemore  v.  The  Glamorganshire  Canal 
Navigation,  1  Mylne  &  Keen,  154.  See  also  Reg.  v.  Ambergate,  &c.  Railw. 
Co.,  23  Law  Times,  246;  s.  c.  17  Q.  B.  362,  957;  Reg.  v.  Eastern  Counties 
Railw.,  1  Railw.  C.  509.  But  the  writ  was  held  defective  in  this  case,  in  not 
alleging  that  the  company  had  abandoned  or  unreasonably  delayed  the  work. 
Reg.  v.  Same,  2  Railw.  C.  260;  s.  c.  10  Ad.  &  El.  531 ;  2  Q.  B.  347,  569. 

3  Reg.  v.  The  Lancashire  &  Yorkshire  Railw.  Co.,  7  Railw.  C.  266;  s.  c.  16 
Eng.  L.  &  Eq.  327. 

4  Reg.  v.  Great  Western  Railw.  Co.,  16  Eng.  L.  &  Eq.  341.  The  extreme 
to  which  this  very  questionable  doctrine  was  pushed  in  this  case,  seems  to  have 
proved,  as  is  not  uncommon  in  such  cases,  the  point  of  departure,  for  its  entire 
overthrow  and  abandonment. 

vol.  i.  43  [*639] 


674  MANDAMUS.  PART  VII. 

that  there  was  no  implied  obligation  upon  the  company,  either  lie- 
fore  or  after  entering  upon  the  work,  to  complete  it.5 

*  3.  This  question  arose  and  was  examined  in  the  courts  of  New 
York,  somewhat,  in  one  case,6  where  it  was  held  that  a  railway  cor- 
poration, which  has  completed  its  road  between  the  terminal  points 
named  in  the  charter,  forfeits  its  franchise  by  abandoning  or 
ceasing  to  operate  a  part  of  the  route.  The  remedy,  however,  in 
such  cases,  is  not  by  injunction  at  the  suit  of  the  public,  but  by 
mandamus  or  indictment  at  the  election  of  the  state,  or  by  proceed- 
ing to  annul  the  charter  of  the  corporation.  It  is  here  said,  that 
it  seems  that  the  corporation  owes  a  duty  to  the  public  to  exercise 
the  franchise  granted  to  it,  and  that  it  cannot  abandon  a  portion  of 
its  road  and  incur  a  forfeiture  of  that  portion  at  its  mere  pleasure. 

6  York  &  North  Midland  Railw.  Co.  v.  Reg.,  1  El.  &  Bl.  858 ;  s.  c.  18  Eng. 
L.  &  Eq.  199;  Great  Western  Railw.  Co.  v.  Same,  1  El.  &  Bl.  874.  These 
decisions,  rendered  (in  April,  1853),  one  of  which  is  given  at  length  in  the  last 
section,  seem  to  have  been  acquiesced  in,  and  they  certainly  conform  to  what  has. 
ever  been  regarded  as  the  law  upon  that  subject  in  this  country.  And  the  same 
principle  was  maintained  in  Scottish  Northeastern  Railw.  v.  Stewart,  3  Macqueen's 
H.  L.  Cases,  382 ;  s.  c.  5  Jur.  (N.  S.)  607.  But  see  Lind  v.  Isle  of  Wight  Ferry 
Co.,  7  Law  Times  (N.  S.),  416  ;  Mason  v.  Stokes  Bay  Pier  &  Railw.  Co.,  11  W. 
R.  80.  It  is  here  held,  that  where  a  notice  from  a  railway  company  to  take  lands 
for  the  purposes  of  their  undertaking  has  been  followed  by  an  award  fixing  the 
amount  of  purchase  and  compensation  money,  the  court  has  jurisdiction  to  com- 
pel the  company  to  complete  the  purchase,  s.  P.  Metropolitan  Railw.  v.  Wood- 
house,  11  Jur.  (N.  S.)  296  ;  s.  c.  34  L.  J.  (Ch.)  297.  But  see  Quicke  ex  parte, 
13  W.  R.  921;  s.  c.  12  L.  T.  (N.  S.)  113. 

6  The  People  v.  The  Albany  &  Vermont  Railw.,  24  N.  Y.  261 ;  s.  c.  37  Barb. 
216. 

[*640] 


§155. 


IN   WHAT    CASES   THIS   IS   THE   PROPER   REMEDY. 


675 


SECTION     V. 


In  what  Cases  this  is  the  proper  Remedy. 


1.  Where  the  act  is  imperative  upon  the  com- 

pany to  build  road. 

2.  Mandamus  more  proper  remedy  than  in- 

junction. 

3.  Commissioners  of  public  ivorks  not  liable 

to  this  writ. 

4.  Public  duties  of  corporations  may  be  so  en- 

forced. 

5.  Facts  tried  by  jury.     Instances   of  this 

remedy. 

6.  Cannot  be  substituted  for  certiorari  when 

that  is  taken  away. 


7.  Requiring  costs  to  be  allowed. 

8.  Other  instances  of  its  application. 

9.  Lies  where  the  duty  is  clear,  and  no  other 

remedy. 

10.  Not  awarded  to  control  legal  discretion. 

11.  Does  not  lie  to  try  the  legality  of  an  elec- 

tion. 

12.  Lies  to  compel  transfer  of  stock. 

13.  Where  a  railway  company  omit  to  have 

damages  estimated  under  the  statute, 
they  may  be  compelled  to  do  so  by  man- 
damus. 


§  155.  1.  But  although  it  must  be  regarded  as  now  definitively 
settled  that  the  writ  will  not  lie,  in  any  case,  coming  within  the 
categories  laid  down  in  the  foregoing  opinion  of  Jervis,  C.  J., 
yet  where  the  act  of  the  legislature  is  imperative  upon  the  com- 
pany to  build  their  road,  this  duty  will  still  be  enforced  by  man- 
damus.1 

*  2.  But  it  has  been  held  that  such  public  duty  cannot  be  enforced 
by  injunction,  at  the  suit  of  the  attorney-general.2     Corporations 

1  Hodges  on  Railways,  665,  in  note  ;  Great  Western  Railw.  Company  v.  Reg. 
Exch.  Ch.  1853;  1  El.  &  Bl.  874;  s.  c.  18  Eng.  L.  &  Eq.  211.  The  land- 
owners are  so  far  interested  in  the  building  of  a  railway  as  to  be  entitled  to  bring 
the  petition,  and  different  owners  of  land  may  join.  Reg.  v.  York  and  North 
Midland  Railw.  16  Eng.  L.  &  Eq.  299.  But  it  has  been  held,  that  a  land-owner 
could  not  apply  for  an  injunction  to  restrain  a  railway  company  from  applying 
for  an  act  of  the  legislature  repealing  a  former  act,  and  to  restrain  them  from 
paying  back  deposits.  Hodges  on  Railways,  657,  note  ;  Anstruther  v.  East  Fife 
Railw.,  1  Macqueen,  Ho.  Lds.  98.  Nor  can  a  land-owner  maintain  a  suit  in 
equity  against  a  company  for  not  completing  their  line,  in  pursuance  of  their  act 
of  incorporation.  Heathcote  v.  North  Staffordshire  Railw.  Company,  6  Railw. 
C.  358.  The  Lord  Chancellor  here  held,  reversing  the  opinion  of  the  Vice- 
Chancellor,  that  in  such  case,  a  court  of  equity  will  leave  the  party  to  his  legal 
rights.  Reg.  v.  Dundalk  &  Enniskillen  Railw.,  5  L.  T.  (N.  S.)  25;  Lind  v. 
Isle  of  Wight  Ferry  Co.,  7  L.  T.  (N.  S.)  416  ;  State  v.  Hartford  &  New  Haven 
Railw.,  29  Conn.  538.  And  mandamus  is  the  proper  remedy  by  which  to  compel 
a  canal  company  to  bridge  over  a  private  way  which  it  intersects.  Habersham 
v.  Savannah,  &c.  Canal  Co.,  26  Ga.  665. 

2  Attorney-General  v.  Birmingham  &  Oxford  Junction  Railw.,  and  two  other 
Companies,  3  McN.  &  G.  453 ;  s.  c.  7  Eng.  L.  &  Eq.  283. 

[*641] 


676  MANDAMUS.  PART  VII. 

have  for  a  very  long  time  been  compelled,  by  writ  of  mandamus, 
to  perform  duties  imposed  by  statute.3  A  turnpike  company  was 
compelled  to  fence  its  road  wbere  it  passed  through  the  land  of 
private  persons,  and  it  was  held  no  excuse  that  the  company  had 
made  satisfaction  for  the  damages  awarded  to  the  land-owner,  or 
thai,  having  completed  their  road,  they  had  no  funds  with  which 
to  build  the  fences.4 

3.  But  it  has  been  held,  that  Commissioners  of  Woods  and  For- 
ests,  *  who  gave  notice  that  they  intended  to  take  certain  lands,  in 
order  to  ascertain  if  they  could  be  obtained  at  a  certain  price,  and 
finding,  by  the  claim  of  the  land-owners,  that  the  land  could  not 
be  obtained,  so  as  to  bring  the  amount  to  be  expended  within  the 
legislative  limit,  and  the  funds  at  the  disposal  of  the  commission- 
ers, abandoned  their  notice,  could  not  be  compelled  by  mandamus 
to  take  the  land,  such  commissioners  acting  in  a  public  capacity, 
although  the  rule  is  otherwise  as  to  private  railway  companies.5 

4.  Public  duties  of  corporations  have  been  enforced  by  man- 
damus, as  repairing  the  channel  and  banks  of  a  river,  which,  by 
their  charter,  they  had  been  permitted  to  alter.6     Also  to  make 

3  The  Hartford  &  New  Haven  Railway  Company  was  chartered  to  construct 
and  operate  a  railway  from  Hartford  to  the  navigable  waters  of  the  harbor  of 
New  Haven.  A  steamboat  company  was  afterwards  chartered  to  run  in  con- 
nection with  it  to  New  York ;  and  the  railway  and  steamboat  line  constituted  a 
route  that  was  of  great  convenience  to  the  public.  After  the  construction  of  the 
road  and  the  use  of  it  in  connection  with  the  steamboat  line  for  several  years,  the 
railway  company  constructed  a  track  diverging  from  its  original  track  at  a  point 
a  mile  and  a  half  from  tide-water  and  running  to  the  station  of  the  New  York  & 
New  Haven  railway  company,  in  the  city  of  New  Haven,  and  discontinued  the 
running  of  its  passenger  trains  to  its  original  terminus  at  tide-water.  This 
change  incommoded  travellers  who  wished  to  pass  by  the  steamboat  route,  of 
whom  there  were  many.  Held,  that  a  mandamus  ought  to  be  issued  to  compel 
the  company  to  run  passenger  trains  to  its  original  terminus,  and  that  the  man- 
damus was  properly  applied  for  by  the  attorney  for  the  state.  State  v.  Hartford 
&  New  Haven  Railw.,  29  Conn.  538. 

4  Reg.  v.  Trustees  Luton  Roads,  1  Q.  B.  860.  Lord  Denman,  C.  J.,  said, 
"  The  law  orders  these  parties  to  perform  the  duty  if  they  build  the  road."  Pat- 
teson,  J.,  said,  "  If  they  had  not  adequate  funds  they  ought  not  to  have  made 
the  road." 

5  Reg.  v.  Commissioners  of  Woods  and  Forests,  15  Q.  B.  761 ;  ante,  §  88. 

c  Keg.  v.  Bristol  Dock  Company,  1  Railw.  C.  548;  2  Q.  B.  64;  2  Railw.  C. 
599.  A  return  that  the  law  imposed  no  such  duty,  but  that  they  had  performed 
it,  'as  near  as  circumstances  permitted,"  is  insufficient,  as  being  a  traverse  of 
the  law,  or  an  evasion  of  the  writ.  Reg.  v.  Caledonian  Railw.,  16  Q.  B.  19; 
s.  c.  3  Eng.  L.  &  Eq.  285. 
[*642] 


§  155.  IN   WHAT   CASES   THIS   IS   THE   PROPER   REMEDY.  677 

alterations  in  the  sewers  of  a  city  ;  and  where,  in  the  act  of  parlia- 
ment, this  duty  is  defined,  "  to  make  such  alterations  and  amend- 
ments in  the  sewers  as  may  be  necessary  in  consequence  of  the 
floating  of  the  harbor,"  it  was  held  this  was  a  proper  form  for  the 
command  of  the  writ."  Also  to  restore  a  highway,  intersected  by 
a  railway,  to  its  former  width.8 

*  5.  In  the  English  practice,  questions  of  fact,  arising  on  a  man- 
damus, are  tried  by  a  jury.9  So  a  railway  company  may  by 
mandamus,  be  required  to  establish  an  uniform  rate  of  tolls.10 
And  also  to  proceed  in  the  appraisal  of  land  damages,  after  giving 
notice  to  treat.11  So  the  sheriff  or  officer  who  holds  the  inquisition, 
may  be  compelled  to  proceed  where  he  has  no  legal  excuse,  as 
where  such  officer  assumed  to  direct  a  verdict  against  the  claim,  on 
the  ground  the  applicant  could  not  recover.12 

7  The  King  v.  The  Bristol  Dock  Company,  6  Barn.  &  Cress.  181.  Man- 
damus is  the  appropriate  remedy  to  compel  a  delinquent  municipal  corporation 
to  discharge  its  liabilities  under  a  subscription  to  stock  of,  or  a  loan  of  its  credit 
to,  a  railway  company.  Commonwealth  v.  Perkins,  43  Penn.  St.  400.  A  dec- 
laration for  a  mandamus  to  levy  a  rate  to  pay  a  debt  is  good,  though  it  does  not 
state  the  amount  of  the  debt.  Ward  v.  Lowndes,  6  Jur.  (N.  S.)  247  ;  s.  c. 
29  L.  J.,  Q.  B.  40 ;  Ellis  &  Ellis,  940.  But  see  McCoy  v.  Harnett  County,  5 
Jones  Law,  265.  But  in  Austin,  ex  parte,  13  Law  Times  (N.  S.),  443,  it  was 
held  that  the  court  will  not  in  the  first  instance  grant  a  rule  for  a  mandamus 
calling  on  a  public  officer  to  make  a  rate  for  the  payment  of  costs  due  to  a  suc- 
cessful appeal  against  a  rate  which  had  been  quashed  at  quarter  sessions. 
After  the  order  for  payment  of  costs  is  found  good,  if  it  is  still  disobeyed,  a 
mandamus  may  be  called  for.  Austin,  ex  parte,  supra.  See  People  v.  Mead, 
24  N.  Y.  114.  Mandamus  will  lie  to  compel  a  town  committee  to  pay  their  dam- 
ages to  land-owners  for  lands  taken  for  a  highway.  Minhinnah  v.  Haines,  5 
Dutch.  388  ;  State  v.  Keokuk,  9  Iowa,  438.  And  see  State  v.  County  Judge,  12 
Iowa,  237 ;  State  v.  Davenport,  id.  335 ;  Knox  County  v.  Aspinwall,  24  How. 
(U.  S.)  376  ;  Uniontown  v.  Commonwealth,  34  Penn.  St.  293  ;  Commonwealth 
v.  Pittsburg,  id.  496. 

*  Reg.  v.  Birmingham  &  Gloucester  Railw.,  2  Railw.  C.  694;  2  Q.  B.  47; 
Reg.  v.  Manchester  &  L.  Railw.,  1  Railw.  C.  523;  3  Q.  B.  528;  2  Railw.  C. 
711.  But  in  some  cases  it  is  requisite  the  duty  should  be  strictly  defined.  Reg. 
v.  The  Eastern  Counties  Railw.,  3  Railw.  C.  22;  2  Q.  B.  569. 

9  Reg.  v.  London  &  Birmingham  Railw.,  1  Railw.  C.  317  ;  Reg.  v.  Manch.  & 
Leeds  Railw.,  3  Q.  B.  528;  s.  c.  2  Railw.  C.  711;  Reg.  v.  Newcastle-upon- 
Tyne,  1  East,  114. 

10  Clarke  v.  L.  &  N.  Union  Canal,  6  Q.  B.  898.  But  in  this  case  judgment 
was  given  for  defendant,  by  reason  of  the  "  insufficiency  of  the  writ." 

11  Ante,  §§  88,  99,  et  seq.  and  cases  there  cited. 

11  Walker  v.  The  London  &  Blackwall  Railw.,  3  Q.  B.  744.     In  Carpenter  v. 

[*643J 


tiTS  MANDAMUS.  PART  VII. 

6.  But  where  the  statute  in  terms  takes  away  the  remedy  by 
certiorari,  the  court  will  not  indirectly  accomplish  the  same  thing 
by  mandamus.18 

7.  A  mandamus  was  awarded  requiring  the  presiding  officer 
to  allow  costs  in  a  case  before  him,14  for  assessing  land  dam- 
ages, including  witnesses,  attendance  by  attorney  at  the  inquest, 
*  conferences  and  briefs,  but  not  the  expenses  of  surveyors,  as 
such. 

8.  And  where  the  commissioners  refused  to  assess  the  value 
of  land  taken  for  a  railway,  on  the  ground  that  the  prosecutor 
had  no  title  to  the  same,  it  was  held  that  he  is  entitled  to  have 
their  judgment  revised  by  a  jury,  and  a  mandamus  will  lie,  on  his 
behalf,  to  compel  the  commissioners  to  grant  a  warrant  for  a 
jury.15  And  a  mandamus  will  issue,  at  the  suit  of  supervisors  of 
a  town,  to  compel  a  railway  to  build  a  highway,16  or  bridge,17  for 
public  use. 

9.  No  better  general  rule  can  be  laid  down  upon  this  subject, 
than  that  where  the  charter  of  a  corporation,  or  the  general  stat- 

Bristol,  21  Pick.  258,  which  was  where  county  commissioners  refused  to  assess 
damages  sustained  in  consequence  of  constructing  a  railway,  on  the  ground  that 
the  party  applying  did  not  own  the  land,  and  also  refused  to  grant  a  warrant  for 
a  jury  to  revise  their  judgment,  as  required  by  R.  S.  c.  39,  §  56.  Held,  that  the 
party  was  entitled  to  a  jury  to  revise,  and  that  a  mandamus  would  lie  to  compel 
the  commissioners  to  grant  a  warrant.  The  court  say,  "  Where  application  was 
made  to  county  commissioners  to  estimate  damages  caused  by  the  laying  out  of  a 
railway,  turnpike,  or  highway,  the  duty  required  of  them  would  be  a  judicial 
duty.  If  they  refused  or  neglected  to  perform  it,  this  court  would  issue  a  man- 
damus commanding  them  to  do  it ;  that  is,  to  exercise  their  judgment  on  the 
matter.  But  when  they  had  performed  this  duty,  it  being  within  their  discre- 
tion, no  other  tribunal  would  have  aright  to  interfere  with  or  complain  of  the  man- 
ner in  which  they  had  performed  it."  So  also  in  Chicago,  Burlington,  &  Quincy 
Railw.  v.  Wilson,  17  111.  123,  it  was  held,  that  upon  application  to  a  judge,  to 
appoint  commissioners  to  condemn  land  for  the  use  of  a  railway,  he  is  compella- 
ble to  act,  if  a  case  is  made  under  the  statute.  His  duty  is  ministerial,  and  not 
judicial,  and  a  mandamus  was  accordingly  awarded. 

13  The  King  v.  The  Justices  of  West  Riding  of  Yorkshire,  1  Ad.  &  El.  563. 

14  The  King  v.  The  Justices  of  the  City  of  York,  1  Ad.  &  El.  828 ;  Reg.  v. 
Sheriff  of  Warwickshire,  2  Railw.  C.  661. 

15  Carpenter  v.  Bristol,  21  Pick.  258.  See  Smith  v.  Boston,  1  Gray,  72; 
s.  p.  Fotherby  v.  Met.  Railw.,  Law  Rep.  2  C.  P.  188. 

16  Whitmarsh  Township  v.  Phil.,  Ger.,  &  N.  Railw.  Co.,  8  Watts  &  Serg. 
365. 

17  Cambridge  &  Somerville  v.  Charlestown  Branch  Railw.,  7  Met.  70. 
[*644J 


§  155.  IN    WHAT    CASES    THIS    IS    THE    PROPER    REMEDY.  679 

ute  in  force,  and  applicable  to  the  subject,  imposes  a  specific  duty, 
either  in  terms  or  by  fair  and  reasonable  construction  and  implica- 
tion, and  there  is  no  other  specific  or  adequate  remedy,  the  writ  of 
mandamus  will  be  awarded.  But  if  the  charter,  or  the  general 
law  of  the  state,  affords  any  other  specific  and  adequate  remedy,  it 
must  be  pursued.18 

10.  So,  too,  it  must  be  a  complete  and  perfect  legal  right,  or  the 
court  will  not  award  the  writ.19  And  the  writ  of  mandamus  is 
*  never  awarded  to  compel  the  officers,  or  visitors  of  a  corporation, 
who  have  discretionary  powers,  to  exercise  such  powers  according 
to  the  requisitions  of  the  writ,  but  to  compel  them  to  proceed  and 
exercise  them  according  to  their  own  judgment,  in  cases  where 
they  refuse  to  do  so.20    And  it  may  be  laid  down  as  a  general  rule, 

18  Rex  v.  Nottingham  Old  Waterworks,  6  Ad.  &  El.  355 ;  Dundalk  Western 
Railw.  v.  Tapster,  1  Q.  B.  067;  Corregal  v.  London  &  Blackwall  Railw.,  3 
Railw.  C.  411 ;  The  People  v.  The  Corporation  of  New  York,  3  Johns.  Cas.  79; 
Louisville,  &c.  Railw.  v.  State,  25  Ind.  177  ;  People  v.  Hatch,  33  111.  9.  It 
seems  to  be  considered,  that  quo  warranto  will  not  lie  to  an  eleemosynary  cor- 
poration, and  therefore  mandamus  is  the  necessary  remedy  to  correct  abuses. 
2  Kvd  on  Corporations,  337,  n.  a.  In  King  v.  Dr.  Gower,  3  Salk.  230,  it  was 
held  mandamus  was  not  the  proper  remedy  to  try  the  right.  Rex  v.  Bank  of 
England,  Douglas,  524;  Shipley  v.  Mechanics'  Bank,  10  Johns.  484;  The  State 
v.  Holiday,  3  Halst.  205  ;  Asylum  v.  Phenix  Bank,  4  Conn.  172.  Unless  the 
rights  of  the  stockholders  in  this  respect  are  restricted  by  the  charter  of  the  cor- 
poration, or  by  its  rules  and  by-laws  passed  in  conformity  thereto,  stockholders 
have  a  right  of  access  at  reasonable  hours  to  the  proper  sources  of  information, 
to  know  how  the  affairs  of  the  corporation  are  conducted ;  and  if  such  access  is 
refused  to  them,  mandamus  is  the  appropriate  remedy  to  enforce  this  right. 
Cockburn  v.  Union  Bank,  13  La.  Ann.  289.  See  also  People  v.  Haws,  34  Barb. 
69  ;  Lamb  v.  Lynd,  44  Penn.  St.  336.  But  see  Briggs,  ex  parte,  1  Ellis  &  Ellis, 
881;  s.  c.  28  L.  J.,  Q.  B.  272,  where  the  assertion  of  the  right  to  inspect  ac- 
counts is  somewhat  modified. 

19  Rex  v.  Archbishop  of  Canterbury,  8  East,  213;  People  v.  Collins,  19 
Wend.  56;  1  Wend.  318;  Napier,  ex  parte,  18  Q.  B.  692;  s.  c.  12  Eng.  L.  & 
Eq.  451.      * 

20  Rex  v.  Bishop  of  Ely,  1  Wm.  Black.  81 ;  Reg.  v.  Dean  and  Chapter  of 
Chester,  15  Q.  B.  513 ;  Appleford's  case,  1  Mod.  82.  Lord  HaWs  opinion  cited 
with  approbation  by  Lord  Campbell,  C.  J.,  15  Q.  B.  520;  Rex  v.  Bishop  of  Ely, 
2  T.  R,  290;  Murdochs  Appeal,  7  Pick.  322;  Parker,  C.  J.,  Attala  County  v. 
Grant,  9  Sm.  &  Mar.  77  ;  Towle  v.  The  State,  3  Florida,  202 ;  2  Q.  B.  433 ; 
Ex  parte  Benson,  7  Cow.  3C3,  and  cases  cited,  3  Binney,  273 ;  5  id.  87 ;  6  id. 
456;  5  id.  536;  2  Penn.  517;  5  Wend.  114;  10  Pick.  244;  13  Pick.  225;  24 
id.  343  ;  People  v.  Columbia  C.  P.,  1  Wend.  297.  But  the  officers  of  a  municipal 
corporation  will  be  compelled  to  hold  a  court  for  the  revision  of  the  list  of  bur- 

[*645] 


680  MANDAMUS.  PART  VII. 

that  where  any  officers,  or  boards,  have  a  legitimate  discretion, 
ami  are  acting  within  their  appropriate  jurisdiction,  -they  cannot 
be  controlled  in  their  action  by  mandamus,  issuing  from  a  su- 
perior court.21  If  the  visitor  or  trustee  be  himself  the  party  in- 
terested in  the  exercise  of  the  function,  it  is  said  to  form  an 
exception.22 

*  11.  But  in  one  case,23  it  is  said  to  be  an  inflexible  rule  of 
law,  that  where  a  person  has  been  de  facto  elected  to  a  corporate 
office,  and  has  accepted  and  acted  in  the  office,  the  validity  of 
the  election  and  the  title  to  the  office  can  only  be  tried  by  proceed- 
ing on  a  quo  warranto  information.  A  mandamus  will  not  lie, 
unless  the  election  can  be  shown  to  be  merely  colorable.  But 
where  the  right  is  clear,  or  where  the  old  board  refuse  to  surrender 
to  the  newly  elected  one,  without  any  color  of  excuse,  the  new 
board  may  be  put  in  possession  of  the  insignia  or  functions  of 
office  by  writ  of  mandamus,  or,  as  held  in  some  of  the  states,  by 
bill  in  equity.2* 

gesses,  notwithstanding  the  time  for  holding  the  same,  in  compliance  with  the 
terms  of  the  statute,  had  elapsed,  and  notwithstanding  the  mayor,  at  the  time  of 
granting  the  mandamus,  was  not  the  same  person  who  acted  at  the  court.  Regina 
v.  Mayor  and  Assessors  of  Rochester,  7  El.  &  Bl.  910;  s.  c.  30  Law  Times,  73. 
But  it  was  held,  in  Heffner  v.  Commonwealth,  28  Penn.  St.  108,  that  the  plaintiff 
in  the  proceeding  must  show  a  specific  legal  right,  which  had  been  infringed ; 
and  that  the  damage  which  the  petitioner  suffered,  in  common  with  other  citizens, 
by  the  neglect  of  a  municipal  corporation  to  lay  out  an  alley,  although,  by  reason 
of  his  land  lying  adjacent,  he  was  specially  exposed  to  suffer  loss  by  the  neglect, 
would  not  entitle  him  to  demand  the  writ :  that  the  injury  sustained  by  the  peti- 
tioner must  not  only  be  different  in  amount  or  degree,  but  must  be  different  in 
kind  from  that  which  falls  upon  the  public  in  general,  by  the  grievance  complained 
of,  to  entitle  him  to  the  writ.  The  suit  should  be  prosecuted  by  some  public  offi- 
cer, for  the  redress  of  an  omission  of  duty  affecting  only  the  public  interest  and 
that  of  individuals  incidentally.  So,  also,  where  the  party  is  entitled  to  costs  in 
a  proceeding  before  commissioners  to  estimate  land  damages  against  a  railway, 
unless  the  duty  to  award  such  costs  is  one  which  is  plain  and  obvious,  it  will  not 
be  enforced  by  writ  of  mandamus.  Morse,  Petitioner,  18  Pick.  448.  And  the 
court  will  not  grant  a  mandamus  requiring  parish  officers  to  receive  a  pauper 
in  obedience  to  an  order  of  removal,  the  proper  course  being  by  indictment. 
Downton  ex  parte,  2  El.  &  Bl.  856. 

-1   Waterbury  v.  Hart.,  Prov.  &  F.  Railw.  Co.,  27  Conn.  146. 

n  Reg.  v.  Dean  and  Chapter  of  Rochester,  17  Q.  B.  1 ;  s.  c.  6  Eng.  L.  &  Eq. 
269. 

,3  Reg.  v.  Mayor,  &c.  of  Chester,  5  El.  &  Bl.  531  ;  s.  c.  34  Eng.  L.  &  Eq.  59 

44  Dart  v.  Houston,  22  Ga.  506. 


§156. 


PROPER   EXCUSES,   OR   RETURNS   TO   THE   WRIT. 


681 


12.  And  this  is  the  proper  remedy  to  compel  a  corporation  to 
allow  the  transfer  of  stock  upon  their  books,25  or  the  company 
may  be  compelled  to  pay  damages  for  such  refusal  by  an  action  at 
law.25 

13.  It  was  held  in  a  Colonial  Appeal  to  the  Privy  Council,  that 
where  the  company  proceeded  to  build  one  of  their  bridges  so  near 
a  toll-bridge  across  the  same  water,  as  to  lessen  the  value  of  the 
latter,  without  taking  any  steps  to  have  such  damage  estimated 
under  the  statutory  provision  in  such  cases,  that  this  did  not  so 
render  the  company  wrong-doers,  as  to  subject  them  to  the  ordinary 
action  at  law,  which  would  have  been  the  proper  remedy,  but  for 
the  statutory  one.  It  was  said  the  owner  of  the  toll-bridge  may 
have  a  writ  of  mandamus  to  compel  the  company  to  proceed  and 
have  the  damage  assessed  under  the  statute.26 


SECTION    VI. 

Proper  Excuses,  or  Returns  to  the  Writ. 


1.  Company  may  return  that  powers  had  ex- 

pired at  date  of  writ. 

2.  May  show  want  of  funds  to  perform  duty. 

3.  But  cannot  show  that  road  is  not  necessary, 

or  would  not  be  remunerative. 

4.  May  quash  part  of  return,   and  require 

answer  to  remainder. 

5.  Counsel  for  writ  entitled  to  begin  and  close. 


6.  Cannot  impeach  the  statute  in  reply  to  the 

writ. 

7.  Peremptory  writ  cannot  issue  till  whole 

case  tried. 

8.  Will  not  quash  return  summarily. 

9.  No  excuse  allowed  for  not  complying  with 

peremptory  tvrit. 


§  156.  1.  It  seems  to  be  an  unquestionable  answer  to  the  writ 
of  mandamus  to  compel  the  company  to  complete  their  road, 
that  the  time  for  taking  lands  under  the  act  had  expired  at  the 
time  of  issuing  the  alternative  writ,  so  that  it  had  become  impos- 


25  Helm  v.  Swiggett,  12  Ind.  194.  But  where  a  shareholder  executed  a  trans- 
fer of  his  shares,  which  he  took  together  with  the  certificate  of  his  shares  to  the 
company's  office  for  registration,  and  left  the  transfer,  but  refused  to  leave  the 
certificate  for  the  inspection  of  the  directors,  it  was  held  that  the  court  would 
not  compel  the  company  to  register  the  transfer.  East  Wheal  Martha  Mining 
Company  in  re,  33  Beav.  119. 

26  Jones  v.  Stanstead,  &c.  Railw.,  L.  R.  4  P.  C.  98;  8  Moore  P.  C.  (N.  S.) 
312. 

[*646] 


682  MANDAMUS.  PART  VII. 

sible  to  build  the  road,  as  required  in  the  writ.1  But  where,  at  the 
*  time  of  the  service  of  the  alternative  mandamus,  the  company  had 
time  to  institute  compulsory  proceedings  for  taking  lands,  it  was 
held,  that  if,  instead  of  doing  so,  they  attempted  to  defend  the  writ, 
and  failed,  it  was  at  their  peril,  and  the  court  would  not  excuse 
them,  upon  the  ground  that  in  the  mean  time  their  compulsory 
powers  had  expired.2 

2.  And  where  it  was  attempted  to  defend  against  the  writ,  on 
the  ground  that  it  was  not  shown  that  the  company  had  funds,  the 
court  said,  in  the  last  case  referred  to  :  "  We  shall  presume  that 
the  company  have  funds."  But  it  would  seem  that  the  want  of 
funds,  and  of  the  ability  to  obtain  them,  if  shown  on  the  return  to 
the  alternative  mandamus,  might  be  an  excuse.3     And  the  com- 

1  Reg.  v.  London  &  N.  W.  Railw.,  16  Q.  B.  864;  s.  c.  6  Eng.  L.  &  Eq.  220, 
denying  the  authority  of  Reg.  v.  Birmingham  &  Gloucester  Railw.,  2  Q.  B.  47, 
upon  this  point,  as  justifying  the  writ.  And  in  the  former  case  it  was  held,  the 
prosecutors  were  guilty  of  laches  in  not  sooner  applying  for  the  writ.  But  a  plea 
that  the  cause  of  action  did  not  accrue  within  six  years,  is  a  bad  plea  to  a  decla- 
ration for  a  mandamus,  as  the  statute  of  limitations  does  not  bar  an  action  for 
such  a  writ.  Ward  v.  Lowndes,  6  Jur.  (N.  S.)  247  ;  s.  c.  1  El.  &  El.  940,  956 ; 
2  id.  419;  29  L.  J.  (Q.  B.)  40. 

8  Reg.  v.  York,  Newcastle,  &  Berwick  Railw.,  16  Q.  B.  886  ;  s.  c.  6  Eng.  L. 
&  Erj.  259  ;  Reg.  v.  Lancashire  &  Yorkshire  Railw.,  16  Q.  B.  906 ;  s.  c.  6  Eng. 
L.  &  Eq.  265;  Reg.  v.  G.  W.  Railw.,  1  El.  &  Bl.  263,  744;  s.  c.  18  Eng.  L.  & 
Eq.  364.  In  this  case  it  was  held,  that  the  return  must  show  that  the  company's 
compulsory  powers  for  taking  land  had  expired,  and  that  they  could  not  obtain 
the  necessary  land  without  exercising  those  powers.  Where,  on  motion  for  man- 
damus to  compel  the  company  to  build  a  bridge,  it  was  stated  on  behalf  of  the 
company  that  they  could  not  build  it  without  purchasing  additional  land,  and  that 
their  powers  for  that  purpose  had  expired,  and  the  prosecutor  stated  that  they  could 
build  it  without  taking  additional  land,  it  was  held  that  an  alternative  writ  of  man- 
damus should  issue  to  the  company,  and  that  they  might  return  their  inability  from 
want  of  power  to  purchase  land.  Regina  v.  Dundalk  &  Enniskillen  Railw.,  5  L.  T. 
(N.  S.)  25.  Where  mandamus  was  issued  to  a  railway,  reciting  that  premises  in 
the  occupation  of  B.  had  been  injuriously  affected  by  the  works  of  the  company, 
and  that  the  company  having  declined  to  join  in  the  appointment  of  an  arbitrator 
to  estimate  the  damage  to  B.,  he  had  appointed  an  arbitrator,  who  had  duly  made 
his  award,  and  commanding  the  company  to  take  up  his  award,  and  the  company 
returned  that  B.  also  occupied  other  lands  that  were  taken  by  the  company,  and 
that,  before  the  execution  of  their  works,  it  was  agreed  between  him  and  the 
company  that  the  company  should  pay  to  him  a  certain  sum  in  satisfaction  of  the 
lands  so  taken,  and  the  premises  so  injuriously  affected,  this  was  held  a  good 
return.     Reg.  ».  West  Midland  Railw.,  11  W.  R.  857,  in  the  Queen's  Bench. 

3  Lord  Campbell,  C.  J.,  in  Reg.  v.  London  &  N.  W.  Railw.,  16  Q.  B.  864; 
[*647] 


§  156.  PROPER    EXCUSES,   OR   RETURNS   TO    THE   WRIT.  683 

pany  *  are  not  estopped  from  making  this  plea  by  reason  of  having, 
in  some  instances,  exercised  their  compulsory  powers  of  taking 
land.4 

3.  But  it  is  no  sufficient  excuse  that  the  road  has  become 
unnecessary,  or  that  it  would  not  prove  remunerative,  or  that,  in 
all  reasonable  probability,  the  funds  which  will  come  to  the  hands 
of  the  company  will  prove  inadequate  to  the  completion  of  the 
work.5 

4.  By  the  English  statute  the  court  may  quash  part  of  a  return 
to  the  writ  which  is  bad  in  law,  and  put  the  prosecutor  to  plead 
to  or  traverse  the  remainder.  But  if  the  grounds  of  defence  to 
the  writ  be  repugnant,  the  court  may,  upon  that  ground,  quash  the 
whole.6 

5.  The  counsel  for  the  crown  are  allowed  to  begin,  although  the 
return  may  be  in  the  nature  of  a  demurrer  to  the  writ.7  The 
validity  of  the  writ  may  be  impeached  on  the  return.8 

6.  In  a  case  where  the  approaches  to  a  bridge  across  a  railway 
were  not  of  the  width  required  by  the  special  act,  a  return  to  the 
writ  of  mandamus,  that  they  were  as  convenient  to  the  public  as 
the  original  road,  or  as  they  could  be  made,  in  execution  of  the 
powers  of  the  act,  and  that  to  widen  them  to  the  dimensions  de- 
fined in  the  act  would  require  more  land,  and  that  their  powers  for 
taking  land  compulsorily  had  expired  before  they  were  called  upon 
to  widen  these  approaches,  is  bad.9 

7.  The  peremptory  writ  will  not  be  issued  until  all  the  matters 

s.  c.  6  Eng.  L.  &  Eq.  220;  Reg.  v.  Ambergate,  &c.  Railw.,  1  El.  &  Bl.  372; 
s.  C.  18  Eng.  L.  &  Eq.  222.  In  Reg.  v.  Eastern  Counties  Railw.,  10  Ad.  & 
El.  531,  it  was  considered  no  objection  to  granting  the  writ  that  the  company 
had  not  the  requisite  funds,  and  could  not  raise  them,  without  a  new  act. 

4  Reg.  v.  Ambergate,  &c.  Railw.,  1  El.  &  Bl.  372;  s.  c.  18  Eng.  L.  &  Eq. 
222. 

5  Reg.  v.  York  &  N.  M.  Railw.,  16  Eng.  L.  &  Eq.  299,  not  reversed  upon 
these  points ;  Reg.  v.  L.  &  Y.  Railw.,  7  Railw.  Cas.  266  ;  s.  c.  16  Eng.  L.  &  Eq. 
327. 

6  9  Anne,  c.  20;  Reg.  v.  Mayor  of  Cambridge,  2  T.  R.  456  ;  4  Burrow,  2008 ; 
Rex  v.  Mayor  of  York,  5  T.  R.  66. 

• 7  Reg.  v.  St.  Pancras,  6  Ad.  &  El.  314 ;  State  v.  Directors  of  Bank,  28  Vt. 
594. 

8  Clarke  v.  Leicestershire  &  Northamptonshire  Canal  Co.,  6  Q.  B.  898;  s.  c. 
3  Railw.  C.  730. 

9  Reg.  v.  Birmingham  &  Gloucester  Railw.,  2  Q.  B.  47 ;  3  id.  223 ;  2  Railw. 
C.  694;  Rex  v.  Ouse  Bank  Commissioners,  3  Ad.  &  El.  544. 

[*648] 


684  MANDAMUS.  PART  VII. 

contained  in  the  alternative  writ  are  finally  determined  in  favor  of 
the  application,  or  enough  so  to  justify  the  writ.10 

*  8.  The  court  will  not  quash  a  return  summarily,  or  order  it 
taken  off  the  file,  unless  it  is  frivolous,  so  as  to  be  an  obvious  insult, 
and  contempt  of  court.11 

9.  No  excuse  for  non-compliance  with  a  peremptory  writ  of 
mandamus  is  admissible.12  It  is  no  ground  of  objection  to  a  man- 
damus, that  a  requisition  is  made  on  parties  in  the  alternative,  to 
do  one  of  three  things,  if  the  duty  enjoined  by  the  act  of  parlia- 
ment forms  one  of  them,  and  there  has  been  a  general  refusal  to 
comply  with  the  requisition.13  And  the  demand  for  the  rate  in 
this  case  was  held  sufficient,  notwithstanding  the  church-wardens 
required  the  vestry  to  lay  the  rate,  or  do  another  act,  which  last 
was  illegal.13 


SECTION    VII. 

Where  the  Alternative  Writ  requires  too  much,  it  is  bad,  for  that 
which  it  might  have  maintained. 

§  157.  It  seems  to  be  well  settled  in  the  English  practice,  that 
if  the  writ  issue,  in  the  first  instance,  for  some  things  which  de- 
fendant is  not  bound  to  do,  it  cannot  be  supported,  even  as  to 

10  Reg.  v.  Baldwin,  8  Ad.  &  El.  947.  This  was  where  the  alternative  writ 
required  two  sums  of  money  to  be  paid,  and  it  had  been  found  that  one  of  the 
sums  was  due,  and  the  inquiry  was  not  finished  in  regard  to  the  other.  The 
court  refused  to  grant  a  peremptory  writ  for  the  payment  of  the  sum,  about  which 
the  controversy  was  ended. 

11  Reg.  v.  Payn,  3  Nev.  &  P.  165;  The  King  v.  Round,  5  Nev.  &  M.  427. 
But  the  return  to  a  writ  of  mandamus  must  be  very  minute  in  showing  why  the 
party  did  not  do  what  he  was  commanded  to  do.  Reg.  v.  Port  of  Southampton, 
1  EL,  B.  &  S.  5;  s.  c.  7  Jur.  (N.  S.)  990;  30  L.  J.  (Q.  B.)  244. 

12  Reg.  v.  Mayor  of  Poole,  1  Q.  B.  616.  But  after  judgment  for  the  crown, 
on  a  return  to  a  writ  of  mandamus,  the  defendants  having  voluntarily,  and  with 
the  prosecutor's  assent,  done  the  act  commanded,  the  court  will  quash  a  peremp- 
tory writ  of  mandamus  as  unnecessary,  and  an  abuse  of  the  process  of  the  court. 
Reg.  v.  Saddlers'  Company,  3  El.  &  El.  42  ;  is.  c.  10  Ho.  Lds.  Cas.  404 ;  33  L.  J. 
(Q.  B.)  68. 

u  Reg.  v.  St.  Margarets,  Leicester,  8  Ad.  &  El.  889. 
[*649] 


§  158.       ENFORCING    PAYMENT   AWARDED    AGAINST   RAILWAYS. 


685 


those  things  which  lie  is  compellable  to  perform.1  But  the  writ 
may  be  awarded  to  complete  such  portions  of  their  road  as  the 
company  are  still  compellable  to  build,  although  from  lapse  of 
time  it  has  become  impossible  to  build  the  entire  road.2 

But  if  the  alternative  writ  commands  more  than  is  necessary  to 
*  be  done  to  comply  with  the  statute,  it  will  be  quashed,  notwith- 
standing the  party  might  have  been  entitled  to  this  remedy  to  a 
certain  extent.3 


SECTION    VIII. 


Enforcing  Payment  of  Money  awarded  against  Railways. 


The  enforcement  of  payment  of  money 
against  corporations  by  mandamus. 

Where  debt  will  lie,  the  party  not  entitled 
to  mandamus. 

Mandamus  proper  to  compel  payment  of 
compensation  under  statute. 


4.  Mandamus  not  allowed  in  matters  of  equity 

jurisdiction. 

5.  Contracts  of  company  not  under  seal  en- 

forced by  mandamus. 

6.  Where  a  statute  imposes  a  specific  duty,  an 

action  will  lie. 


§  158.  1.  It  seems  to  have  been  the  more  general  practice  to 
enforce  the  payment  of  money  awarded  against  a  corporation,  in 
pursuance  of  a  statute  duty,  by  mandamus,  where  no  other  specific 
remedy  is  provided.1 

1  Reg.  v.  Caledonian  Railw.,  16  Q.  B.  19 ;  s.  c.  3  Eng.  L.  &  Eq.  285 ;  Reg. 
v.  East  &  West  India  Docks  &  Birm.  June.  Railw.,  2  El.  &  Bl.  466;  s.  c.  22 
Eng.  L.  &  Eq.  113. 

2  Reg.  v.  York  &  North  M.  Railw.,  16  Eng.  L.  &  Eq.  299.  This  case  was 
reversed  in  Exchequer  Chamber  upon  other  grounds. 

3  York  &  North  Midland  Railw.  v.  Milner,  3  Railw.  C.  774,  reversing,  in  the 
Exchequer  Chamber,  The  Queen  v.  York  &  N.  M.  Railw.,  3  Railw.  C.  764. 

1  The  King  v.  Nottingham  Old  Waterworks,  6  Ad.  &  El.  355;  Rex  v. 
Trustees  of  Swansea  Harbor,  8  Ad.  &  El.  439.  In  this  case  one  party  moved 
for  a  certiorari  with  a  view  to  quash  the  proceedings,  and  the  other  for  a  manda- 
mus to  carry  them  into  effect.  The  rule  for  the  former  was  discharged,  and  for 
the  latter  made  absolute.  Reg.  v.  Deptford  Improvement  Co.,  8  Ad.  &  El. 
910.  Where  a  city  council  is  authorized  and  required  by  law  to  levy  and  col- 
lect a  tax  upon  the  real  and  personal  property  of  the  city,  sufficient  to  pay  the 
interest  upon  bonds  issued  by  the  city  in  payment  of  a  subscription  to  the  stock 
of  a  railway  company,  and  the  council  refuses  to  do  so,  and  there  is  no  specific 
legal  remedy  provided  for  such  refusal,  mandamus  may  be  issued  to  compel 
them  to  perform  that  duty,  at  the  instance  of  holders  to  whom  the  bonds  have 
passed  from  the  company.     An  express  or  explicit  refusal  in  terms  is  not  neces- 

[*650] 


(»sr>  MANDAMUS.  PART  VII. 

*  2.  But  it  has  been  held  that  an  action  of  debt  will  lie  upon  the 
inquest  and  assessment  of  compensation  for  land.2  And  where,  in 
granting  to  a  railway  the  right  to  erect  a  bridge  across  the  river 
Ouse,  it  was  provided  in  the  act  of  parliament,  that,  if  the  erection 
of  such  bridge  should  lessen  the  tolls  of  another  bridge  company 
upon  the  same  river,  after  a  trial  of  three  years,  as  compared  with 
the  three  years  next  preceding  the  erection  of  the  railway  bridge, 
the  railway  company  should  pay  to  the  bridge  company  a  sum 
equal  to  ten  years'  purchase  of  such  annual  decrease  of  tolls  ;  it 
was  held  that  debt  will  lie  for  such  purchase,  and  that  mandamus 
is  no  more  effectual  remedy  and  ought  not  to  be  granted.3  If  the 
party  have  no  right  to  execution,  upon  an  award,  mandamus  will 
be  awarded,  otherwise  not.4 

3.  So  the  court  will  not  enforce  an  ordinary  matter  of  contract 
or  right,  upon  which  action  lies  in  the  common-law  courts,  as  to 
compel  common  carriers' to  perform  their  public  duties,  or  special 
contracts,5  the    statute    not    requiring   them    to    carry  all    goods 

sary  to  put  the  respondents  in  fault ;  it  will  be  sufficient  that  their  conduct  makes 
it  clear  that  they  do  not  intend  to  do  the  act  required.  The  writ,  in  such  case, 
may  be  applied  for  by  any  of  the  bondholders ;  and  it  is  not  necessary  that  all 
the  bondholders  should  be  parties  to  it.  Nor  is  it  necessary  to  make  the  railway 
corporation,  to  which  the  bonds  were  originally  executed,  or  the  tax-payers  of 
the  city,  or  the  commonwealth,  parties  to  the  bills,  in  Kentucky.  And  it  is  no 
objection  to  the  issuing  of  the  writ  that  an  action  has  been  brought  against  the 
city,  upon  some  of  the  coupons,  such  action  having  been  dismissed  before  judg- 
ment, on  the  petition  for  mandamus.  Maddox  v.  Graham,  2  Met.  (Ky.)  56.  It  is 
laid  down  in  the  above  case,  that  a  proceeding  for  a  mandamus  against  the  city 
council  is  virtually  a  proceeding  against  the  corporation,  and  the  judgment  is 
obligatory  upon  the  members  of  the  common  council  who  may  be  in  office  at  the 
time  of  its  rendition.  And  a  change  in  the  membership  of  this  council  does  not 
so  change  the  parties  as  to  abate  the  proceeding.     lb. 

2  Corrigal  v.  The  London  &  Blackwall  Railw.,  5  Man.  &  Gr.  219. 

3  Reg.  v.  The  Hull  &  Selby  Railw.,  6  Q.  B.  70;  Williams  v.  Jones,  13  M. 
&  W.  628.  Courts  of  equity  will  not  interfere  where  there  is  a  remedy  before 
sheriffs'  jury.  East  &  West  India  D.  &  B.  Railw.  v.  Gattke,  3  Mac.  &  G.  155; 
s.  c.  3  Eng.  L.  &  Eq.  59. 

4  Rex  v.  St.  Catherine's  Dock  Co.,  4  Barn.  &  Ad.  360;  Corpe  v.  Glyn,  3  B. 
&  Ad.  801  ;  Reg.  v.  The  Victoria  Park  Co.,  1  Q.  B.  288.  And  in  this  case  Den- 
man,  C.  J.,  says,  the  court  should  not  go  beyond  our  extraordinary  interposition 
by  mandamus,  to  require  a  corporation  to  make  a  call  upon  the  shareholders,  to 
pay  debts,  where  the  legislature  had  intrusted  them  with  that  power,  and  they  had 
no  standing  capital. 

6  Ex  parte,  Bobbins,  7  Dowl.  P.  Cases,  566. 
[*651] 


§  158.       ENFORCING   PAYMENT   AWARDED    AGAINST   RAILWAYS.  687 

offered.  But  where  compensation  is  claimed  for  damages  done 
under  a  statute,  the  proper  remedy  is  by  mandamus,  although  the 
party  may  claim  that  the  company  went  beyond  their  powers,  and 
thus  committed  a  wrong  for  which  the  proper  remedy  is  an  ac- 
tion.6 

4.  Nor  will  mandamus  lie  where  the  proper  remedy  is  in  equity,7 
*  and  the  right  is  one  not  enforceable  at  law,  but  only  in  equity,  as 
in  matters  of  trust  and  confidence.  But  in  a  case  where  the  act 
of  incorporation  allowed  the  company  to  sue  and  to  be  sued  in  the 
name  of  their  clerk,  it  was  held  that  execution  could  not  issue 
against  the  clerk  personally,  and  in  giving  judgment,  Tindal,  C. 
J.,  said :  "  There  can  be  no  doubt  but  that  the  funds  of  the  trus- 
tees may  be  made  answerable  for  the  amount  ascertained  in  the 
action,  in  case  of  a  refusal  to  apply  them,  either  by  a  mandamus 
or  a  bill  in  equity."8 

5.  And  where,  after  a  rule  nisi,  for  a  mandamus  to  compel  the 
company  to  summon  a  jury  to  assess  compensation  to  land- 
owners, a  contract  was  entered  into  between  the  land-owners 
and  the  agent  of  the  company,  wherein  they  agreed  upon  the 
payment  of  a  stated  sum,  and  also  a  weekly  compensation  ;  upon 
the  payment  of  the  stated  sum,  and  the  execution  of  the  contract, 
the  proceedings  were  discontinued.  The  company  paid  the  weekly 
sum  for  a  time,  and  then  discontinued  the  payment.  The  applica- 
tion for  mandamus  being  renewed,  the  court  held,  that,  as  the 
contract  was  not  under  their  seal,  no  action  will  lie  upon  it, 
against  the  company,9  and  it  should  therefore  be  enforced  by  man- 
damus.10 

6  Reg.  v.  North  Mid.  Railw.,  2  Railw.  C.  1 ;  11  Ad.  &  El.  955 ;  Thicknesse 
v.  Lancaster  Canal  Co.,  4  M.  &  W.  472 ;  Fenton  v.  Trent  &  Mersey  Nav.  Co., 
9  M.  &  W.  203 ;  Rex  v.  Hungerford  Market  Co.,  3  Nev.  &  M.  622. 

7  Rex  v.  The  Marquis  of  Stafford,  3  T.  R.  646.  See  Edwards  v.  Lowndes, 
1  El.  &  B.  92;  20  L.  J.  Q.  B.  404;  16  Eng.  L.  &  Eq.  204.  The  relation  of 
trustee  and  cestui  que  trust  gives  no  right  of  action  at  law  for  money  due.  Par- 
doe  v.  Price,  16  M.  &  W.  451.  The  proper  remedy  is  in  equity,  and  mandamus 
will  not  lie.  Reg.  v.  Trustees  of  Balby  &  Worksop  Turnpike,  1  B.  B.  C.  134; 
8.  c.  16  Eng.  L.  &  Eq.  276. 

8  Worrnwell  v.  Hailstone,  6  Bing.  668. 

9  Reg.  v.  Mayor  of  Stamford,  6  Q.  B.  433. 

10  Reg.  v.  Bristol  &  Exeter  Railw.,  4  Q.  B.  162 ;  8.  c.  3  Railw.  C.  777.  This 
seems  to  us  rather  a  refinement.  If  the  contract  was  really  obligatory  upon  the 
company,  it  might  as  well  be  the  foundation  of  an  action,  as  to  be  enforced  by 
mandamus.    In  Tenney  v.  East  Warren  Lumber  Company,  43  N.  H.  343,  it  was 

[*652] 


688 


MANDAMUS. 


PART  VII. 


6.  It  seems  to  be  the  general  rule  of  the  English  law,  that 
where  ;i  statute  imposes  a  specific  obligation  or  duty  upon  a 
corporation,  an  action  will  lie  to  enforce  it,  founded  upon  the 
statute,  cither  debt  or  case,  according  to  the  nature  of  the 
claim.11 


*SECTION    IX. 


Tlie  Writ  sometimes  denied  in  Matters  of  Private  Concern. 


1.  Ilandamus  denied  to  compel  company  to 

divide  profits. 

2.  Allowed  to  compel  production  and  inspec- 

tion of  corporation  books. 

3.  117//  compel  the  performance   of  statute 

duty,  but  not  to  undo  what  is  done. 

4.  Allowed  to  compel  the  production  of  the 


register  of  shares,  or  the  registry  of  the 
name  of  the  owner  of  shares,  and  in 
other  cases. 
5.  It  is  the  common  remedy  for  restoring  per- 
sons to  corporate  offices  of  which  they  are 
unjustly  deprived. 


§  159.  1.  .Where  the  charter  and  subsequent  acts  relating  to  the 
Bank  of  England  required  the  corporation  to  divide  their  profits 
semi-annually,  a  mandamus  to  compel  the  production  of  the  books 
of  the  company,  so  as  to  show  an  account  of  their  net  income  and 
profits,  since  the  last  dividend  was  declared,  more  than  six  months 
having  elapsed,  was  denied.1  Abbott,  C.  J.,  said  it  was  in  effect 
"  an  application,  on  behalf  of  one  of  several  partners,  to  compel 
his  copartners  to  produce  their  accounts  of  profit  and  loss,  and  to 
divide  their  profits,  if  any  there  be."  It  was  also  said,  that  this 
might  very  properly  be  done  in  a  Court  of  Chancery,  but  a  court 
of  law  is  a  very  unfit  tribunal  for  such  a  subject.  "  A  mere 
trading  corporation  differs  materially  from  those  which  are  intrusted 
with  the  government  of  cities  and  towns,  and  therefore  have  im- 
portant public  duties  to  perform."  Bayley,  J.,  said  :  "  The  court 
never  grant  this  writ,  except  for  public  purposes,  and  to  compel 

held,  that  evidence  that  a  deed  purporting  to  be  the  deed  of  a  corporation  was 
executed  by  agents  duly  authorized  by  it,  is  prima  facie  evidence  that  any  seal 
affixed  to  it  has  been  adopted  by  the  corporation  for  that  occasion.  And  the 
same  point  is  maintained  in  Ransom  v.  Stonington  Savings  Bank,  2  Beasley, 
212. 

11  Tilson  v.  Warwick  Gas-Light  Co.,  4  B.  &  C.  962;  Garden  v.  General 
Cemetery  Co.,  5  Bing.  (N.  C.)  253. 

1  Rex  v.  The  Bank  of  England,  2  B.  &  Aid.  620. 
[*653] 


§  159.  WRIT    DENIED    IN    MATTERS    OF    PRIVATE    CONCERN.  689 

the  performance  of  public  duties."  Best,  J.,  said  :  "  If  we  were 
to  grant  this  rule  we  should  make  ourselves  auditors  to  all  the 
trading  corporations  in  England." 

2.  But  in  a  later  case 2  it  was  held,  that  mandamus  may  be 
granted  to  compel  the  production  and  inspection  of  corporation 
books  and  records  at  the  suit  of  a  corporator,  where  a  distinct 
controversy  has  already  arisen,  and  the  relator  is  interested  in  the 
question,  and  the  former  cases  upon  the  subject  are  elaborately 
reviewed,  and  held  to  confirm  this  view.3 

*  8.  The  court  has  refused  to  grant  a  mandamus  to  a  private 
trading  corporation,  to  permit  a  transfer  of  stock  to  be  made  in 
their  books.4  In  one  case  the  writ  was  applied  for,  to  compel 
a  railway  company  to  take  the  company  seal  off  the  register 
of  shareholders.5  Lord  Campbell,  C.  J.,  said :  "  If  I  had  the 
smallest  doubt,  I  would  follow  the  example  of  the  high  tribunal 
(Q.  B.  in  Ireland),  which  is  said  to  have  complied  with  a  similar 
application.  But  having  no  doubt,  I  am  bound  to  act  on  my  own 
view.  The  writ  of  mandamus  is  most  beneficial,  but  we  must 
keep  its  operation  within  legal  bounds,  and  not  grant  it  at  the 
fancy  of  all  mankind.  We  grant  it  when  that  has  not  been  done 
which  a  statute  orders  to  be  done,  but  not  for  the  purpose  of 
undoing  what  has  been  done."  6     "  It  is  said  the  court  will  compel 

*  Rex  v.  Merchant  Tailors'  Company,  2  B.  &  Ad.  115. 

3  Rex  v.  Hostmen  of  Newcastle-upon-Tyne,  2  Strange,  1223.  So  to  inspect 
the  court  roll  of  a  manor,  at  the  instance  of  a  tenant  who  has  an  interest  in  a 
pending  question,  and  has  been  refused  permission  to  inspect  the  court  rolls  by 
the  lord  of  the  manor.  Rex  v.  Shelley,  3  T.  R.  141.  But  not  otherwise.  Rex 
v.  Allgood,  7  T.  R.  746.  It  is  not  necessary  a  suit  shall  be  pending,  if  a 
distinct  question  have  arisen.  R.  v.  Tower,  4  M.  &  S.  162.  And  in  an  action 
against  an  incorporated  company,  which  had  ceased  to  carry  on  business,  a 
director  of  the  company  may  be  ordered  by  the  court  or  a  judge  to  give  the 
plaintiff  inspection  of  documents  not  denied  to  be  in  his  possession,  or  under  his 
control.  Lacharme  v.  Quartz  Rock  Mariposa  Gold  Mining  Company,  31  L.  J. 
Exch.  335 ;  s.  c.  1  H.  &  C.  134.  And  the  corporators  may  compel  the  inspec- 
tion of  the  stock  ledger,  if  that  contain  important  evidence,  although  the  corpo- 
ration do  not  keep  the  books  required  by  law.  People  v.  Pacific  Mail  Steamship 
Co.,  50  Barb.  280. 

4  Rex  v.  The  London  Assurance  Company,  5  B.  &  Aid.  899. 

5  Nash,  ex  parte,  15  Q.  B.  92. 

6  The  office  of  the  writ  of  mandamus  is  to  stimulate  and  not  to  restrain  the 
exercise  of  official  functions ;  and  after  the  officers  have  performed  the  duties 
imposed  upon  them,  they  are  no  longer  subject  to  it.  School  Directors  of  Bed- 
ford Borough  v.  Anderson,  45  Penn.  St.  388. 

vol.  i.  44  [*654J 


690  MANDAMUS.  PART  VII. 

the  corporation  to  affix  its  seal,  when  it  refuses  to  do  so,  without 
legal  excuse  but  will  not  try  the  legality  of  an  act,  professedly 
done  in  pursuance  of  a  statute."  The  difference  seems  to  be  one 
of  form  rather  than  substance,  and  to  rest  mainly  upon  the 
consideration,  that,  after  the  act  is  done,  its  legality  had  better  be 
tested  in  the  ordinary  mode,  by  an  action  at  law  or  in  equity. 

4.  But  the  writ  has  been  granted  to  compel  the  production  of 
a  register  of  shareholders,  to  enable  a  creditor  to  proceed  against 
them."  So,  too,  to  compel  the  registry  of  the  name  of  the  owner 
of  shares,  properly  transferred,  or  of  the  name  of  the  personal 
*  representative,  in  case  of  the  decease  of  the  owner.8  But  in 
some  cases  of  peculiar  necessity  for  specific  aid  by  way  of  man- 
damus, as  the  delivery  of  a  key  to  the  party  entitled  to  hold 
it,  by  the  foundation  of  a  private  charity,9  the  writ  has  been 
awarded. 

5.  And  there  can  be  no  doubt  the  Court  of  Queen's  Bench  has 
almost  immemorially  been  accustomed  to  try  the  validity  of  mu- 
nicipal and  other  public  corporate  elections  by  quo  warranto, 
which,  in  case  of  illegality  found,  will  displace  the  incumbents, 
but  not  establish  those  rightfully  entitled  to  the  function,10  man- 

7  Reg.  v.  Worcestershire  &  Stafford  Railw.,  Q.  B.  Weekly  R.  1853-54,  482. 

8  Ante,  §§  42,  44;  Reg.  v.  L.  &  C.  Railw.,  13  Q.  B.  998.  No  question 
is  made  here  but  the  court  will  compel  the  company,  by  mandamus,  to  enter  a 
transfer  upon  their  books  in  a  proper  case,  but  the  application  was  denied  on 
other  grounds.  See  Reg.  v.  Midland  Counties  &  Sh.  J.  Railw.,  9  L.  T.  (N.  S.) 
15  Ir.  Com.  Law,  514,  525 ;  s.  c.  151,  155.  And  see  Helm  v.  Swiggett,  12  Ind. 
194.  But  not  where  inspection  of  the  certificate  of  shares  was  refused  to  the 
directors.     East  Wheal  Martha  Mining  Co.,  in  re,  33  Beav.  119. 

9  Reg.  v.  Abrahams,  4  Q.  B.  157. 

10  Rex  v.  Williams,  1  Bur.  402;  Rex  v.  Hertford,  1  Ld.  Ray.  426;  1  Sal. 
374;  Rex  v.  Breton,  4  Burrow,  2260;  Rex  v.  Cambridge,  4  Bur.  2008;  Rex  v. 
Tregony,  8  Mod.  Ill,  127;  Rex  v.  Turkey  Co.,  2  Burrow,  999;  Anonymous, 
2  Strange,  696.  In  some  English  cases  the  King's  Bench  seems  to  have  alto- 
gether disregarded  the  distinction  between  public  and  private  corporations,  in 
exercising  control  over  their  functionaries.  Rex  v.  Bishop  of  Ely,  2  T.  R.  290. 
And  in  Rex  v.  St.  Catharine's  Hall,  4  T.  R.  233,  the  refusal  to  grant  the  writ 
seems  to  be  placed  altogether  upon  other  grounds.  But  it  seems  a  mandamus 
will  not  be  awarded  to  compel  a  voluntary  society  to  recognize  the  rights  of  the 
minority.  The  King  v.  Gray's  Inn,  Douglass,  353;  Rex  v.  Lincoln's  Inn,  4  B. 
&  C.  855.  Where  there  is  already  one  in  the  office  de  facto,  mandamus  will  not 
be  awarded,  quo  warranto  being  the  proper  remedy  to  try  the  title  of  the  officer 
in  possession.  Rex  o.  Mayor  of  Colchester,  2  T.  R.  259,  260.  But  in  Rex  v. 
Thatcher,  it  was  awarded  to  the  commissioners  of  land-tax  to  admit  the  person 

[*655] 


§  159.  WRIT   DENIED   IN   MATTERS   OP   PRIVATE    CONCERN.  691 

damns  being  requisite  for  that  purpose.  But  whatever  may  be 
the  English  rule  in  regard  to  merely  private  corporations,  it  is 
certainly  settled  in  this  country  that  the  courts  will  try  the  validity 
of  an  election  and  the  question  of  usurpations,  and  the  legality  of 
amotions  in  private  corporations  n  in  this  mode.  But  there  is  one 
*  case  where  the  court  refused  to  try  the  title  to  an  annual  office  by 
writ  of  mandamus,  for  the  reason  that  it  would  prove  unavailing.12 
But  it  has  been  awarded  in  England  to  restore  a  clerk  to  a 
butchers'  company,  a  clerk  to  a  company  of  masons,  and  sundry 
similar  officers,13  and  in  this  country,  to  restore  the  trustee  of  a 

clerk  having  the  majority  of  legal  votes.  1  Dow.  &  R.  426  ;  The  People  v.  The 
Corporation  of  New  York,  3  Johns.  Cases,  79 ;  the  St.  Louis  County  Ct.  v. 
Sparks,  10  Missouri,  117;  Bonner  v.  State,  7  Georgia,  473;  Clayton  v.  Carey, 
4  Maryland,  26. 

11  Commonwealth  v.  Arrison,  15  S.  &  R.  131 ;  People  v.  Thompson,  21 
Wendell,  235 ;  s.  c.  23  Wendell,  537  ;  People  v.  Head,  25  111.  325 ;  State 
v.  Common  Council,  9  Wis.  254;  State  v.  Boston,  Concord,  &  M.  R.,  25 
Vt.  433 ;  In  the  matter  of  the  White  River  Bank,  23  Vt.  478 ;  Commonwealth 
v.  The  Union  Fire  and  Marine  Insurance  Co.,  5  Mass.  231;  State  v.  Ashley,  1 
Pike,  570;  St.  Luke's  Church  v.  Slack,  7  Cush.  226.  But  in  Gorman  v.  Board 
of  Police,  35  Barb.  527,  it  is  intimated  that  mandamus  will  not  issue  to  restore 
an  officer  removed  in  an  illegal  manner,  but  for  a  sufficient  cause.  Martin  v. 
Board  of  Police,  id.  550.  See  to  the  same  point  Barrows  v.  Mass.  Medical 
Society,  12  Cush.  402.  And  a  fortiori  mandamus  lies  where  the  office  concerns 
the  public  or  the  administration  of  justice.  Lindsey  v.  Luckett,  20  Texas,  516  ; 
Felts  v.  Memphis,  2  Head,  650. 

12  Howard  v.  Gage,  6  Mass.  462.  But  this  case  was  decided  upon  the 
ground  that  the  statute  of  Anne  not  being  in  force  in  that  state,  the  truth  of  the 
return  to  the  alternative  writ  could  not  be  tried  till  the  term  would  expire.  But 
the  decision  is  scarcely  maintainable  even  upon  that  ground.  But  it  was  held  a 
good  defence  to  a  writ  of  mandamus  to  compel  a  township  treasurer  to  pay  an 
order  for  a  teacher's  salary,  that  his  term  of  office  had  expired,  and  all  the  funds 
in  his  hands  had  in  good  faith  been  paid  over  to  his  successor.  State  v.  Lynch, 
8  Ohio  (N.  S.),  347. 

13  Angell  &  Ames  on  Corporations,  §  704.  And  where,  by  the  custom  of  a 
parish,  one  churchwarden  was  appointed  annually  by  the  parishioners,  and  one 
annually  by  the  rector,  and  the  latter  appointed  a  person  who  was  not  an  in- 
habitant of  or  an  occupier  of  property  in  the  parish,  it  was  held  that  a  manda- 
mus to  the  rector  to  appoint  a  churchwarden  was  the  proper  process  by  which  to 
question  the  validity  of  the  appointment.  Barlow  in  re,  30  L.  J.  Q.  B.  271 ; 
8.  c.  5  L.  T.  (N.  S.)  289.  And  see  Reg.  v.  Heart  of  Oak  Benefit  Society,  13 
W.  R.  724. 

[*656] 


692 


MANDAMUS. 


PART  VII. 


private  academic  corporation,14  a  member  of  a  religious  corpora- 
tion, and  many  similar  officers.16 


♦SECTION    X. 

This  Remedy   lost   by  Acquiescence.  —  Proceeding   must   be  Bona 

Fide. 


1.  Remedy  must  be  sought  at  earliest  conven- 

ii  nl  time. 

2.  Courts  will  not  hear  such  case,  merely  to 

S<  ttle  the  question. 


3.  In  New   York  may  be  brought  any  time 
within  statute  of  limitations. 


§  160.  1.  The  right  to  interfere  in  the  proceedings  of  a  corpo- 
ration by  mandamus,  is  one  of  so  summary  a  character,  that  it 
should  be  asserted  at  the  earliest  convenient  time,  or  it  will  not  be 
sustained.1     And  especially  where,  in  the  mean  time,  the  facilities 

14  Fuller  v.  The  Trustees  of  the  Academic  School  in  Plainfield,  6  Conn.  532. 
The  opinion  of  Daggett,  J.,  here  discusses  the  power  of  amotion  of  trustees  and 
officers  by  eleemosynary  corporations  somewhat  at  length,  and  comments  very 
judiciously  upon  the  cases  upon  the  subject. 

15  Green  v.  The  African  Methodist  Ep.  Society,  1  Serg.  &  R.  254 ;  Common- 
wealth v.  St.  Patrick  Benevolent  Society,  2  Binney,  441,  448 ;  Commonwealth  v. 
The  Philanthropic  Society,  5  Binney,  486  ;  Commonwealth  v.  Penn.  Ben.  Institu- 
tion, 2  Serg.  &  R.  141 ;  Franklin  Ben.  Association  v.  Commonwealth,  10  Penn. 
St.  357  ;  Commonwealth  v.  The  German  Society,  15  Penn.  St.  251.  But  if  the 
society  have  the  absolute  power  of  expulsion,  it  would  seem  their  judgment  in 
the  matter  is  not  revisable.  lb.  But  it  was  said,  a'private  person  who  makes  a 
highway  upon  his  own  land,  and  dedicates  it  to  public  use  had  no  such  interest  in 
the  highway  as  to  enable  him  o  sue  for  penalties  given  against  a  railway  which 
had  cut  through  the  highway  and  not  restored  it,  and  a  mandamus  to  enforce  the 
recovery  of  such  penalty  was  denied  on  the  ground  that  the  prosecutor  had  no 
public  duty  in  regard  to  the  highway.  Reg.  v.  Wilson,  11  Eng.  L.  &  Eq.  403 ; 
8.  c.  1  El.  &  Bl.  597. 

1  Rex  v.  Stainforth  &  Keadby  Canal  Co.,  1  M.  &  S.  32 ;  Rex  v.  The  Com- 
missioners of  C.  Inclosure,  1  B.  &  Ad.  378;  Reg.  v.  Leeds  and  Liverpool 
Canal  Co.,  11  Ad.  &  Ell.  316;  Lee  v.  Milner,  1  Railw.  C.  634,  Appendix;  Reg. 
v.  London  &  N.  W.  Railw.,  16  Q.  B.  864;  s.  c.  6  Railw.  C.  634,  and  Reg.  v. 
Lancashire  &  Yorkshire  Railw.,  16  Q.  B.  906  ;  S.  c.  id.  654.  So,  in  Connecticut, 
where  by  statute  a  school  district  can  change  its  school-house  only  by  a  two-thirds 
vote,  and  a  district  which  had  an  established  school-house  voted  by  a  less  majority 
to  have  the  school  kept  for  the  season  in  a  room  furnished  for  the  purpose  within 
half  a  mile  from  the  school-house,  more  convenient  for  the  children  generally,  and 
the  district  committee  kept  the  school  there,  a  mandamus,  being  applied  for  by 

[*657] 


§  160.        REMEDY   LOST.  —  PROCEEDING    MUST   BE   BONA   FIDE.  693 

for  accomplishing  a  public  work,  or  the  public  demand  for  it,  have 
materially  changed,  the  writ  will  not  be  awarded.2  But  it  is  often 
proper  and  necessary  to  wait  till  public  works  are  completed, 
before  moving  for  the  writ.3 

2.  The  English  courts  decline  to  hear  applications  for  manda- 
mus, *  which  are  not  bona  fide,  but  merely  to  obtain  the  opinion 
of  the  court,4  even  where  the  prosecutor  may  have  bona  fide  pur- 
chased shares  in  the  corporation,  but  for  the  mere  purpose  of  try- 
ing a  question  in  which  the  public  have  an  interest.4 

3.  In  New  York  it  was  held,  that  as  there  was  no  special  limi- 
tation upon  this  remedy,  it  might  be  brought  within  the  time 
fixed  for  the  limitation  of  other  similar  or  analogous  remedies.5 
But  this  rule  seems  liable  to  objection  in  many  cases.  The 
English  rule,  that  the  party  should  suffer  no  unreasonable  delay, 
in  the  opinion  and  discretion  of  the  court,  seems  more  just  and 
equitable,  and  is  countenanced  by  other  American  cases.6  The 
decisions  of  the  English  courts  are  very  strict  upon  this  point.7 

some  members  of  the  district,  tax-payers  therein,  and  some  of  whom  had  children 
whom  they  wished  to  send  to  the  school,  to  compel  the  district  committee  to  have 
the  school  kept  in  the  school-house,  it  appearing  that  at  the  time  of  the  application 
the  term  of  the  school  had  half  expired,  and  had  nearly  expired  at  the  time  of  the 
hearing,  this  was  held  not  to  be  such  a  case  as  called  imperatively  for  the  inter- 
position of  the  court  by  mandamus,  it  not  appearing  to  be  a  permanent  attempt 
to  change  the  place  of  the  school.  Colt  v.  Roberts,  28  Conn.  330.  See  State 
'v.  Lynch,  8  Ohio  (N.  S.),  347. 

2  Reg.  v.  Rochdale  &  Halifax  T.  Railw.,  12  Q.  B.  448. 

3  Parkes  ex  parte,  9  Dowl.  P.  C.  614;  Post,  §  220.  Reg.  v.  Bingham,  4  Q. 
B.  877  ;  3  Railw.  C.  390. 

*  Reg.  v.  Liverpool,  M.  &  N.  Railw.,  21   L.  J.  Q.  B.  284;  16  Jur.  149  ;  11 
Eng.  L.  &  Eq.  408 ;  Reg.  v.  Blackwall  Railw.,  9  Dowl.  P.  Cas.  558. 
5  The  People  v.  The  Supervisors  of  West  Chester,  12  Barb.  446. 
8  Mayor,  &c.  of  Savannah  v.  State,  4  Ga.  26. 
7  Reg.  v.  Townsend,  28  Law  Times,  100. 

[*658] 


694  MANDAMUS.  PART  VII. 

SECTION    XL 
Mandamus  allowed  ivhere  Indictment  lies. 


1.  Party    7i)"!/   have    mandamus   sometimes 

net  is  indictable. 

2.  Allowed  to  compel  company  not  to  take  up 

their  rails. 


3.    Mill  not  lie  where  there  is  other  adequate 
remedy. 


§  161.  1.  It  seems  to  have  been  considered  that  the  fact  that  a 
railway  or  other  corporation  had  exposed  themselves  to  indictment 
by  the  very  act  or  omission  proposed  to  be  remedied  by  mandamus, 
was  no  sufficient  answer  to  the  application.1  But  we  are  not  to 
understand  by  this  that  the  two  remedies  are  regarded  as  in  any 
just  sense  concurrent,  and  at  the  election  of  the  party  injured.  An 
indictment  is  ordinarily  no  adequate  redress  for  private  wrong. 
The  case  of  a  nuisance,  put  by  Lord  Denman,  in  the  last  case, 
illustrates  the  subject  fairly.  The  indictment  only  redresses  the 
public  wrong  inflicted  by  a  nuisance.  One  who  suffers  special 
damage  is  entitled  to  a  private  action,  and  sometimes  to  specific 
redress,  in  equity  or  by  mandamus. 

*  2.  Hence,  where  a  railway  company,  after  having  completed 
their  road,  under  an  act  of  parliament,  by  which  it  was  provided 
the  public  should  have  the  beneficial  enjoyment  of  the  same,  pro-' 
ceeded  to  take  up  the  railway,  a  mandamus  was  awarded  to  compel 
them  to  reinstate  it.2 

1  Keg.  v.  Bristol  Dock  Co.,  2  Q.  B.  64;  s.  c.  2  Railw.  C.  599;  Reg.  v. 
Manchester  &  Leeds  Railw.,  3  Q.  B.  528. 

2  Rex  v.  The  Severn  &  Wye  Railw.,  2  B.  &  Aid.  646.  Abbott,  C.  J.,  said, 
in  giving  judgment :  "If  an  indictment  had  been  a  remedy  equally  convenient, 
beneficial,  and  effectual  as  a  mandamus,  I  should  have  been  of  opinion  that  we 
ought  not  to  grant  the  mandamus ;  "  but  it  is  not,  "  for  a  corporation  cannot  be 
compelled,  by  indictment,  to  reinstate  the  road."  "The  court  may,  indeed,  in 
case  of  conviction,  impose  a  fine,  and  that  fine  may  be  levied  by  distress ;  but 
the  corporation  may  submit  to  the  payment  of  the.  fine  and  refuse  to  reinstate  the 
road."  Grant  on  Corp.  270.  And  in  State  v.  Hartford  &  New  H.  Railw.  Co., 
29  Conn.  538,  this  writ  was  awarded  to  compel  the  defendants  to  continue  to  run 
trains  to  connect  with  the  steamboats  on  the  Sound,  after  the  company  had  formed 
a  connection  with  the  New  Haven  &  New  York  Railw.,  and  had  discontinued  run- 
ning trains  across  that  portion  of  their  road  which  connected  with  the  steamboats. 
And  it  was  here  considered  that  a  contract  with  the  connecting  railway  to  discon- 

[*659] 


§  162.  JUDGMENT    FOR    MANDAMUS    REVISABLE    IN    ERROR.  695 

3.  And  it  may  safely  be  affirmed  that  the  mandamus  will  be 
denied  where  there  is  other  adequate  remedy.3 


SECTION    XII. 

Judgment  upon  Petition  for  Mandamus  revisable  in  Error. 

§162.  In  those  states  where  the  court  having  jurisdiction  to 
award  the  writ  of  mandamus  is  not  the  court  of  last  resort,  the 
judgment  upon  applications  for  such  writs  is  revisable  upon  writ 
*  of  error.1  But  it  is  said  not  to  be  the  province  of  a  court  of  error 
to  issue  the  writ  of  mandamus,  unless  the  power  is  conferred  by 
statute.2 

tinue  connection  with  the  steamboats  for  some  equivalent  benefit  to  both  com- 
panies was  void,  as  against  good  policy,  and  that  it  was  a  proper  case  for  the 
public  attorney  to  interfere  by  way  of  petition  for  mandamus. 

3  Reg.  v.  Gamble  &  Bird,  11  Ad.  &  Ell.  09;  Reg.  v.  Victoria  Park  Co., 
1  Q.  B.  288;  Draper  v.  Noteware,  7  Cal.  276;  Williams  v.  Judge  of  County 
Court,  27  Miss.  225;  Trustees  v.  State,  11  Ind.  205;  Bush  v.  Beaven,  1  H.  & 
C.  500;  s.  c.  32  L.  J.  Exch.  54.  But  in  People  v.  Hilliard,  29  111.  413,  the 
court  hold,  that  it  is  not  indispensable  that  the  petition  should  state  that  the 
relator  is  without  any  other  sufficient  remedy.  If  such  appear  to  the  court  to  be 
the  fact,  the  alternative  writ  will  not  be  quashed.  Id.  But  see  School  Board 
v.  People,  20  111.  525,  contra.  People  v.  Wood,  35  Barb.  653;  Goodwin  v. 
Glazer,  10  Cal.  333.  But  the  existence  of  an  equitable  remedy  is  no  ground  for 
refusing  mandamus.  Commonwealth  v.  Commissioners  of  Alleghany,  32  Penn. 
St.  218. 

1  Reg.  v.  The  Manchester  &  Leeds  Railw.,  9  Q.  B.  528,  reversing  the  judg- 
ment of  K.  B.  in  s.  C.  1  Railw.  C.  523,  this  last  hearing  being  in  the  Exchequer 
Chamber.  6  &  7  Vict.  c.  67,  §  2,  gives  the  right  to  a  writ  of  error.  But  upon 
general  principles,  it  is  as  much  revisable  as  judgment  upon  habeas  corpus. 
Holmes  ex  parte,  14  Pet.  U.  S.  540.  Cowell  v.  Buckelew,  14  Cal.  640.  See 
also  Columbia  Ins.  Co.  v.  Wheelright,  7  Wheat.  534.  The  matter  of  granting 
the  writ  of  mandamus,  being  discretionary  in  the  court,  should  not  preclude  a 
revision  of  the  questions  decided  by  the  court  below  as  matter  of  law.  When 
the  writ  is  denied  as  matter  of  discretion,  that  judgment  is  of  course  not  revisable 
in  a  court  of  error. 

2  Angell  &  Ames  on  Corp.,  §  697. 

[*660] 


696 


WRIT    OF    CERTIORARI. 


PART  VII. 


*  CHAPTER    XX I Y. 


WRIT    OF    CERTIORARI. 


SECTION     I. 


To  revise  Proceedings  against  Railways. 


1.  Lies  to  bring  up  unfinished  proceedings,  or 
revise  those  not  according  to  the  com- 
mon law. 


2.  This  lorit  is  one  of  very  extensive  applica- 

tion, unless  controlled  by  statute. 

3.  Where  the  case  is  fully  heard  on  the  appli- 

cation, judgment  may  be  entered. 


§  163.  1.  Where  the  proceedings  against  a  railway  are  in  a  court 
of  record,  and  according  to  the  course  of  the  common  law,  after 
final  judgment  the  writ  of  error  is  the  appropriate  process  for 
their  revision  in  a  superior  court,  and  the  writ  of  certiorari  will  not 
lie.1  But  the  certiorari  is  the  proper  process  to  bring  up  an  un- 
finished proceeding,2  in  an  inferior  court  of  record,  or  a  summary 

1  The  King  v.  Inhabitants  of  Pennegoes,  1  B.  &  C.  142 ;  s.  c.  2  Dow.  &  R. 
209 ;  Queen  v.  Dixon,  3  Salk.  78.  Certiorari  is  the  appropriate  remedy  to 
revise  erroneous  rulings  of  county  commissioners,  when  there  is  no  mode  of 
revision  appointed  by  law.  Mendon  v.  County  Commissioners,  2  Allen,  463. 
The  same  principle  is  maintained  in  People  v.  Board  of  Delegates,  14  Cal. 
479.  It  does  not  lie  to  review  acts  simply  ministerial,  but  all  acts  of  a  judi- 
cial nature,  whether  of  a  court  or  a  municipal  board.  Robinson  v.  Super- 
visors, 16  Cal.  208.  And  see,  to  the  same  point,  People  v.  Board  of 
Health,  33  Barb.  344;  People  v.  Hester,  6  Cal.  679;  Borough  of  Sewickley, 
2  Grant's  Cases,  136;  Justice,  &c.  v.  Hunt,  29  Ga.  155.  But  see  Cam- 
den v.  Mulford,  2  Dutch.  49 ;  State  v.  Jersey  City,  id.  444.  The  power 
of  review  on  a  common-law  certiorari  extends  not  only  to  questions  affect- 
ing the  jurisdiction  of  the  magistrate  and  the  regularity  of  the  proceedings 
before  him,  but  to  all  other  legal  questions.  Mullins  v.  People,  24  N.  Y.  399 ; 
Jackson  v.  People,  9  Mich.  111.  But  see  People  v.  Van  Alstyne,  32  Barb. 
131  ;  People  v.  Board  of  Delegates,  14  Cal.  179.  Only  questions  raised  by 
the  record  can  be  considered.  People  v.  Wheeler,  21  N.  Y.  82.  And  see 
Frederick  v.  Clarke,  5  Wis.  191;  Greenway  v.  Mead,  2  Dutch.  303;  Low 
v.  Galena  &  Chicago  Railw.,  18  111.  324 ;  Mayo  County,  in  re,  14  Ir.  Com.  Law, 
392. 

2  The  writ  of  certiorari  before  judgment  corresponds  to  the  writ  of  error  after 
it.  Commonwealth  v.   Simpson,  2  Grant's  Cases,  438.      And  a  proceeding  by 

[*661] 


§  163.  TO    EEVISE   PROCEEDINGS   AGAINST   RAILWAYS.  697 

*  proceeding  in  such  court,  not  according  to  the  course  of  the  com- 
mon law,  after  judgment  thereon,  and  where  there  is  alleged  error 
in  the  proceedings.1 

2.  This  writ  is  of  universal  application,  unless  taken  away  by 
the  express  words  of  the  statute,  or  where  the  superior  court  is 
not  the  proper  tribunal  to  proceed  with  the  cause.3  And  in  such 
case  the  cause  may  be  brought  up,  and  any  error  corrected,  and 
then  remanded  to  the  inferior  court,  with  a  writ  of  mandamus, 
in  the  nature  of  a  procedendo  ;  or  the  mandamus  may  be  awarded, 
in  the  first  instance,  directing  the  inferior  court  to  proceed  and 
finish  the  case  upon  its  merits.4 

certiorari  is  like  an  appeal,  and  is  governed  by  the  same  rule's,  so  that  the  plain- 
tiff can  dismiss  the  case  in  the  appellate  court,  and  leave  the  whole  matter  as  if 
no  steps  had  been  taken  therein.     Joliet,  &c.  Railw.  v.  Barrows,  24  111.  562. 

3  Where  a  party  has  had  no  notice  of  an  assessment  of  damages  for  land 
taken,  until  after  the  time  limited  for  the  appeal  has  expired,  he  may  have  the 
decision  reviewed  by  certiorari.  Joliet,  &c.  Railw.  v.  Barrows,  24  111.  562. 
And  see  McConnell  v.  Caldwell,  6  Jones  Law,  469 ;  Aycock  v.  Williams,  18 
Texas,  392.  In  the  last  case  it  was  held,  that,  if  a  justice  of  the  peace  grant 
a  new  trial  without  notice  to  the  adverse  party,  who  does  not  appear  at  the 
second  trial,  the  latter  may  either  enjoin  the  collection  of  the  judgment  thus 
rendered,  or  remove  the  cause  to  the  District  Court  by  certiorari.  And  certio- 
rari will  be  granted  to  bring  up  an  order  of  Quarter  Sessions  which  was  void 
on  the  ground  of  interest  in  the  justices.  See  McHeran  v.  Melvin,  3  Jones 
Equity,  195;  Darling  v.  Neill,  15  Texas,  104;  Robson  in  re,  6  Mich.  137; 
Clary  v.  Hoagland,  5  Cal.  476.  And  one  against  whom  a  judgment  is  sought  to 
be  enforced,  though  not  a  party  to  the  proceedings,  may  apply  for  a  certiorari. 
Clary  v.  Hoagland,  supra.  And  see  Reg.  v.  Bell,  8  Cox,  C.  C.  28 ;  Reg.  v. 
Hammond,  12  W.  R.  208;  Reg.  v.  London  &  Northwestern  Railw.,  12  W.  R. 
208. 

4  Woodstock  v.  Gallup,  28  Vt.  587;  s.  c.  1  Redf.  Am.  Railw.  Cases,  485; 
Ottawa  v.  Chicago,  &c.  Railw.,  25  111.  43.  And  in  New  York  the  only  way  of  re- 
viewing a  decision  of  a  justice  of  the  peace  in  summary  proceedings  is  by  a  certio- 
rari. Romaine  v.  Kinshimer,  2  Hilton,  519  ;  Reg.  v.  Bristol  &  Exeter  Railw.,  11 
Ad.  &  Ell.  202  ;  Croffe  v.  Smith,  3  Salk.  79.  It  is  here  said  :  "  There  is  no  juris- 
diction which  can  withstand  a  certiorari.  But  if  the  certiorari  be  taken  away,  by 
the  express  words  of  the  statute,  the  court  will  not  indirectly  accomplish  the  same 
thing  by  mandamus.  Rex  v.  Justices  of  W.  R.  of  York,  in  the  Matter  of  Railway, 
1  Ad.  &  Ell.  563  ;  Rex  v.  Fell,  1  B.  &  A.  380 ;  Rex  v.  Saunders,  5  Dow.  &  R. 
611.  Where  the  certiorari  upon  a  given  subject  is  taken  away  by  act  of  parlia- 
ment, it  must  be  understood  as  extending  only  to  the  terms  of  the  act,  and  for 
something  done  in  pursuance  of  it.  Denman,  C.  J.,  Reg.  v.  Sheffield,  A.  &  M. 
Railw.,  11  Ad.  &  Ell.  194 ;  s.  c.  1  Railw.  C.  537,  545.  Patteson,  J.,  "  Where  there 
is  a  total  want  of  jurisdiction  and  parties  have  proceeded  in  defiance  of,  certiorari, 
it  is  not  taken  away."   South  Wales  Railw.  Co.  v.  Richards,  6  Railw.  C.  197.    See 

[*662] 


»"»!•>>  WRIT   OF   CERTIORARI.  PART  VII. 

*  3.  Where  the  case  is  fully  heard  in  regard  to  its  merits,  upon 
the  rule  to  show  cause,  and  there  is  no  dispute  about  the  facts, 
it  is  common  for  the  court  of  King's  Bench  to  give  judgment, 
without  waiting  for  the  record  to  be  brought  upon  certiorari?  sim- 
ilar to  the  course  we  have  intimated  in  regard  to  applications  for 
mandamus.6 


SECTION    II. 

Where  there  is  an  Excess  of  Jurisdiction. 

§  1G4.  Where  there  is  an  excess  of  jurisdiction,  the  appro- 
priate remedy  ordinarily  is  by  action  of  trespass.  And  in  such 
cases  the  court  have  more  commonly  refused  to  give  redress, 
either  by  certiorari  or  mandamus.1  But  it  is  not  considered  that  a 
statutory  provision,  taking  away  the  writ  of  certiorari,  for  any  thing 
done  under  the  act  of  incorporation,  or  the  general  statutes  as 
to  railways,  applies  to  things  done  wholly  without  the  jurisdiction 
conferred.2 

Jubb  v.  Hull  Dock  Co.,  9  Q.  B.  443.  Denman,  C.  J.,  intimates,  that  where  the 
certiorari  is  taken  away,  in  regard  to  proceedings  under  an  act  of  parliament,  that 
will  not  deprive  the  party  of  that  remedy,  when  the  proceeding  is  complained  of, 
as  not  coming  within  the  act,  although  some  part  of  the  proceedings  is  con- 
fessedly within  the  act,  citing  Rex  v.  The  Justices  of  Kent,  10  B.  &  C.  477. 
See  Reg.  v.  St.  Olaves,  8  Ellis  &  Bl.  529.  The  right  to  have  proceedings  re- 
vised in  the  Supreme  Court  does  not  deprive  the  party  of  the  right  to  bring 
certiorari.  Vanwickle  v.  C.  &  A.  Railw.  ;  Bennett  v.  Same,  2  Green,  145,  162. 
A  certiorari  suspends  all  proceedings  in  a  case  till  it  is  decided.  Taylor  v.  Gay, 
20  Ga.  77. 

In  lie  Edmundson,  17  Q.  B.  67;  s.  c.  24  Eng.  L.  &  Eq.  169.  This  was  a 
case  where  the  statute  required  the  complaint  to  be  made  within  six  months  after 
the  cause  of  action  arose,  and  for  non-compliance  with  this  requirement  the  court 
held  the  proceedings  liable  to  be  quashed,  and  granted  the  certiorari. 

6  Ante,  §  152.  On  certiorari  the  court  will  not  reverse  a  judgment  for  error 
in  taxing  costs,  but  will  correct  the  error  in  this  respect.  Mai-shall  v.  Burton, 
5  Ilaning.  (Del.)  295. 

1  Reg.  v.  Bristol  &  Exeter  Railw.,  2  Railw.  C.  99  ;  11  Ad.  &  Ell.  202;  Reg. 
v.  Sheffield  &  Ashton-under-Lyne  &  Manchester  Railw.,  11  Ad.  &  Ell.  194; 
s.  C.  1  Railw.  C.  537,  545.  The  court  will  rarely  grant  this  writ  where  the  party 
has  an  opportunity  to  litigate  the  question  in  an  action  at  law.  People  v.  Board  of 
Health,  33  Barb.  344.  And  see  Baltimore,  &c.  Co.  v.  Northern,  &c.  Railw.,  15 
Md.  193  :   lVabo.lv  v.  Buentillo,  18  Texas,  313;  Clary  v.  Hoagland,  13  Cal.  173. 

2  Ante,  §  163;  Reg.  v.  Sheffield,  A.  &  M.  Railw.,  11  Ad.  &  Ell.  194;  s.  C. 

[*663] 


§  165. 


JURISDICTION   AND    MODE   OF   PROCEDURE. 


699 


♦SECTION    III. 


Jurisdiction  and  Mode  of  Procedure. 


1.  Lies  in  cases  of  irregularity,  unless  taken 

away  by  statute. 

2.  Inquisitions  before  officers,  not  known  in 

the  law. 


3.  Granting  the  writ  is  matter  of  discretion. 

Defects  not  amendable. 

4.  Not  allowed  for  irregularity  in  proceed- 

ings, or  evidence,  or  form  of  judgment. 


§  165.  1.  Although  it  is  held  that  a  statutory  provision,  deny- 
ing the  certiorari,  is  to  be  limited  to  matters  within  the  jurisdiction 
conferred,  and  will  not  restrict  the  power  of  the  court  in  regard 
to  matters  wholly  beyond  the  jurisdiction,  the  same  rule  cannot 
be  extended  to  mere  irregularity  in  the  exercise  of  the  jurisdic- 
tion. For  unless  the  prohibition  of  the  writ  could  apply  to  such 
cases,  it  could  have  no  application,  and  it  is  incumbent  upon  the 
court  to  give  it  a  reasonable  operation  and  construction.1 

2.  An  inquisition  taken  before  two  under-sheriffs  extraordinary, 
will  be  set  aside  on  that  ground.2  But  an  inquisition  taken  before 
a  clerk  of  the  under-sheriff,  and  an  assessor  appointed  pro  hac  vice 
by  the  sheriff,  although  none  of  the  persons  named  in  the  act,  for 
such  an  office,  will  not  be  quashed  on  certiorari? 

3.  The  granting  of  the  certiorari  is  matter  of  discretion,4  al- 
though there  are  fatal  defects  on  the  face  of  the  proceedings,  which 

1  Railw.  C.  545;  South  Wales  Railw.  v.  Richards,  6  Railw.  C.  197;  Reg.  v. 
Lancashire  &  Preston  Railw.,  6  Q.  B.  759;  3  Railw.  C.  725.  Where  a  jury, 
summoned  under  8  &  9  Victoria,  c.  18,  §  68,  have  taken  into  consideration,  in 
awarding  compensation,  one  claim,  among  others,  as  to  which  (hey  had  no  juris- 
diction, a  certiorari  lies,  although  such  excess  of  jurisdiction  does  not  appear 
upon  the  face  of  the  proceedings,  but  it  may  be  shown  by  affidavit.  Penny  in  re, 
7  Ell.  &  Bl.  6G0. 

1  Reg.  v.  Sheffield,  A.  &  M.  Railw.,  1  Railw.  C.  537  ;  11  Ad.  &  Ell.  194. 

2  Denny  v.  Trapnell,  2  Wilson,  379.  This  decision  is  upon  the  ground  that 
the  sheriff  can  only  appoint  one  under-sheriff  extraordinary. 

3  ReS.  v.  Sheffield,  A.  &  M.  Railw.,  11  Ad.  &  Ell.  194.  Thus  showing  the 
disposition  of  the  courts  to  sustain  the  proceedings  when  not  in  contravention  of 
the  express  terms  of  the  statute. 

4  State  v.  Hudson,  5  Dutch.  115;  Lantis  in  re,  9  Mich.  324;  People  v.  Board 
of  Health,  33  Barb.  314;  Johnson  v.  McKissack,  20  Texas,  160;  People  v.  Pea- 
body,  26  Barb.  437  ;  Handle  v.  Williams,  18  Arkansas,  380;  Mayo  County  in  re 
14  Ir.  Com.  Law  Rep.  392;  Reg.  v.  Reynolds,  13  W.  R.  925;  8.  c.  12  L.  t! 
(N.  S.)  580. 

[*664] 


700  WRIT    OF    CERTIORARI.  PART  VII. 

it  is  sought  to  bring  up.5  The  affidavits  should  swear  positively 
*  and  specifically  to  the  existence  of  the  defects  relied  upon.5  And 
where  the  party  applying  for  the  writ  fails,  from  incompleteness  in 
the  affidavits,  he  will  not  have  a  certiorari  granted  him,  upon  fresh 
affidavits  supplying  the  defects.5  The  conduct  of  the  prosecutor, 
especially  if  it  had  a  tendency  to  induce  the  defects  complained  of, 
is  important  to  be  considered  in  determining  the  question  of  dis- 
cretion, in  regard  to  issuing  the  writ.6 

4.  The  court  will  not  ordinarily  quash  proceedings  in  inferior 
tribunals  for  mere  formal  irregularity  in  the  proceedings  or  the 
testimony  received,  especially  when  there  was  no  objection  made 
at  the  time  ;  nor  will  the  form  of  the  judgment  or  decree  be  consid- 
ered any  sufficient  ground  for  allowing  the  writ,  provided  substan- 
tial justice  has  been  done.7 

5  Reg.  v.  Manchester  &  Leeds  Railw.,  8  Ad.  &  Ell.  413.  Lord  Denman 
says,  '•  1  disclaim  the  principle,  that  we  are  to  issue  a  certiorari  to  bring  up  the 
inquisition,  on  the  ground  that  there  may  probably  be  defects  ;  we  must  clearly 
see  that  facts  do  exist  which  will  bring  the  defects  before  us."  And  an  individual 
member  of  a  corporation  cannot  carry  on  suit  by  bringing  certiorari  in  the  name 
of  the  corporation  without  the  consent  of  a  legal  majority  of  the  members  thereof. 
Silk  Manufacturing  Co.  v.  Campbell,  3  Dutcher,  539. 

6  Reg.  v.  South  Holland  Drainage,  8  Ad.  &  Ell.  429. 

7  Salem  &  South  Danvcrs  Railw.  v.  County  Commissioners,  9  Allen,  563. 

[*665] 


§166. 


INFORMATIONS    IN    THE    NATURE    OF    QUO    WARRANTO. 


701 


*CHAPTER    XXV. 


INFORMATIONS   IN    THE    NATURE    OF    QUO    WARRANTO. 


1.  General  nature  of  the  remedy. 

2.  Its  exercise  confined  to  the  highest  court  of 

ordinary  civil  jurisdiction. 

3.  In  the  English  practice,  this  remedy  not 

extended  to  private  corporations. 

4.  In  this  country  it  has  been  extended  to  such 

corporations. 

5.  This  remedy  will  only  remove  an  usurper, 

but  not  restore  the  one  rightfully  entitled. 

6.  Will  not  lie  where  railway  company  open 

part  of  their  road. 

7.  Nor  where  company  issue  stock  below  par, 

or  begin  to  build  road  before  subscription 
full. 

8.  Form  of  the  judgment. 


9.  Rules  in  regard  to  taxing  costs. 

10.  Used  to  test  corporate  existence  and 
power. 

II.'  Penalties  provided  by  charter  cannot 
subsequently  be  increased  to  a  for- 
feiture. 

12.  But  a  grant  of  corporate  franchises  may 

be   annulled  when    its  purposes  have 
failed. 

13.  Scire  facias  the  proper  remedy  to  deter- 

mine, forfeiture. 

14.  Insufficient  excuses  for  failure  to  repair  a 

turnpike  road. 

15.  This   remedy   does    not    supersede    any 

equitable  redress. 


§  166.  1.  This  is  a  subject  of  very  extensive  application  to  corpo- 
rations, for  the  purpose  of  determining  when  they  have  forfeited  their 
corporate  franchises,  or  usurped  those  not  rightfully  belonging  to 
them,  and  for  numerous  other  purposes.1  It  will  be  found 
treated  very  much  at  length  in  treatises  upon  corporations.2  We 
should  scarcely  feel  justified  in  going  into  the  subject  further 
here  than  it  has  a  special  application  to  railways.  The  form 
of  the  proceedings  in  modern  times  is  by  information  of  the  at- 

1  See  Palmer  v.  Woodbury,  14  Cal.  43 ;  Gano  v.  State,  10  Ohio  (N.  S.),  237 ; 
Parker  v.  Smith,  3  Minn.  240;  Cleaver  v.  Commonwealth,  34  Penn.  St.  283; 
People  v.  Ridgely,  21  111.  65;  Scott  v.  Clark,  1  Clarke,  70;  Mississippi,  &c. 
Railw.  v.  Cross,  20  Ark.  443,  495. 

2  Angell  &  Ames  on  Corporations,  §§  731-765.  See  State  v.  Mississippi,  &c. 
Railw.,  20  Ark.  443,  495  ;  State  v.  Brown,  5  Rhode  Island,  1 ;  Lindsey  v.  Attor- 
ney-General, 33  Miss.  508.  The  information  may  set  forth  specifically  the  ground 
of  forfeiture  relied  upon,  or  may  call  upon  the  corporation  to  show  by  what  war- 
rant they  still  claim  to  exercise  their  corporate  franchises ;  and  the  information, 
like  any  other  criminal  information,  is  regarded  as  amendable.  Commonwealth 
v.  Commercial  Bank,  28  Penn.  St.  383.  And  the  information  must  acquaint  the 
court  with  the  charter  of  the  company,  so  as  to  show  its  powers  and  duties. 
Danville,  &c.  Co.  v.  State,  16  Ind.  456. 


702        INFORMATIONS    IN    THE    NATURE    OP    QUO    WARRANTO.      PART  VII. 

torney-general,  or  other  public  prosecuting  officer,  on  behalf  of 
*the  state,  or  sovereignty,  in  the  nature  of  a  quo  warranto,  upon 
which  a  rule  issues  to  the  defendant  to  show  by  what  warrant  he 
exercises  the  function  or  franchise  called  in  question.3  These  pro- 
ceedings are  now  very  much  controlled  in  England  and  in  the 
American  states  by  statute  defining  the  form  of  process  and  the 
jurisdiction  of  the  courts  in  regard  to  them. 

2.  In  the  absence  of  special  provisions,  the  highest  courts  of 
ordinary  civil  jurisdiction  are  accustomed  to  exercise  the  prerog- 
ative right  of  sovereignty,  to  issue  this  process,  as  well  as  other 
prerogative  writs,  such  as  a  mandamus,  certiorari,  procedendo, 
prohibition,  &c.  In  some  of  the  states  the  courts  refuse  to  ex- 
ercise any  such  prerogative  rights.4  And  in  others  this  power  is, 
by  statute,  conferred  upon  the  Court  of  Chancery,  but  in  other 
forms.5 

3.  The  English  courts  do  not  seem  to  have  allowed  the  exercise 
of  this  proceeding  in  the  case  of  mere  private  corporations,  although 
there  are  numerous  cases  in  the  English  books  of  its  exercise  in 
regard  to,  municipal  corporations,6  and  others  of  an  important  pub- 
lic character. 

3  State  v.  Brown,  33  Miss.  500. 

*  State  v.  Asliley,  1  Pike  (Ark.),  279;  State  v.  Turk,  Mart.  &  Yerg.  287; 
Attorney-General  v.  Leaf,  9  Humph.  753.  See  also  State  v.  Merry,  3  Missouri, 
278 ;  State  v.  McBride,  4  id.  303  ;  State  v.  St.  Louis  P.  M.  &  Life  Ins.  Co.,  8  id. 
330,  where  in  the  latter  state  it  was  held  the  writ  should  issue.  In  Pennsylvania 
the  Supreme  Court  has  authority  to  try  by  mandamus  or  quo  warranto  whether 
or  not  a  contract  entered  into  between  two  different  corporations  is  in  excess  of 
the  lawful  powers  of  either,  and  if  either  corporation  is  exercising  rights  or  fran- 
chises to  which  it  is  not  entitled,  then  to  oust  it  therefrom ;  and  the  proceeding 
may  be  either  at  common  law  or  in  equity,  provided  the  right  of  trial  by  jury  is 
not  interfered  with.  Commonwealth  v.  Delaware  &  Hudson  Canal  Co.,  43  Penn. 
St.  295. 

5  State  v.  Turk,  Mart.  &  Yerg.  287;  State  v.  Merchants'  Ins.  Co.,  8  Humph. 
253  ;  Attorney- General  v.  Leaf,  9  id.  753. 

6  Rex  i:  Williams,  1  Bur.  402  ;  Rex  v.  Breton,  4  Burrow,  2260;  Rex  v.  High- 
more,  5  Barn.  &  Aid.  771 ;  Rex  v.  M'Kay,  4  B.  &  C.  351 ;  Smyth  ex  parte,  11 
W.  R.  754;  s.  c.  8  L.  T.  (N.  S.)  458;  Reg.  v.  Hampton,  13  L.  T.  (X.  S.)  431. 
The  same  rule  obtains  in  regard  to  this  proceeding  in  this  respect  in  England  as 
in  regard  to  mandamus.  Ante,  §  155  ;  Rex  v.  Sir  AVm.  Lowther,  1  Strange,  637  ; 
Rex  v.  Mousley,  8  Ad.  &  Ell.  (N.  S.)  957,  decided  in  1846,  where  it  is  held 
that  the  mastership  of  a  hospital  or  a  grammar  school  was  not  of  so  public  a 
character  as  to  justify  the  exercise  of  this  remedy  ;  nor  the  office  of  a  churchwarden. 
Barlow  in  re,  30  L.  J.  (Q.  B.)  271 ;  s.  c.  5  L.  T.  (N.  S.)  289. 

[*667] 


§  166.         INFORMATIONS   IN   THE    NATURE    OF   QUO    WARRANTO.  703 

*  4.  But  there  is  no  question  that  in  the  American  states  this 
form  of  proceeding  is  extended  to  aggregate  corporations  in  gen- 
eral, and  more  especially  to  the  case  of  banks  and  railways,  which 
partake  in  some  sense  of  a  public  character."  The  general  prin- 
ciples which  we  have  found  applicable  to  the  subject  of  mandamus, 
will,  for  the  most  part,  apply  to  this  proceeding.8 

5.  The  court  cannot  establ  sh  corporate  officers,  who  would 
have  been  elected  had  all  the  legal  votes  offered  been  received  by 
the  inspectors.9  The  only  remedy  is  to  set  aside  the  election. 
And  the  court  will  not  proceed  by  mandamus  to  fill  an  office  until 
the  title  is  first  tried.10 

7  Commonwealth  v.  Arrison,  15  Serg.  &  Rawle,  128  ;  The  People  v.  Thomp- 
son, 21  Wend.  235  ;  s.  c.  23  id.  537  ;  Commonwealth  v.  Union  Ins.  Co.,  5  Mass. 
231  ;  People  v.  River  Raisin  &  Lake  Erie  Railw.,  12  Mich.  381.  See  ante,  §  153; 
State  v.  Concord  &  M.  Railw.,  25  Vt.  433;  Grand  Gulf  Railway  and  Bank  v. 
State,  10  Sm.  &  M.  427 ;  State  v.  A.  P.  Hunton  and  others,  28  Vt.  594.  But  if 
an  election  of  managers  of  a  corporation  be  not  disputed  during  their  term  of 
office  by  quo  warranto,  and  they  are  permitte  I  to  act  throughout  their  term  as 
managers  de  facto,  the  legality  of  the  next  election  cannot  be  questioned  for  any 
vice  or  irregularity  in  the  first.  A  writ  of  quo  warranto  brought  during  the  term 
of  an  office  may  be  tried  after  the  term  has  expired,  but  title  to  a  term  of  office 
already  expired,  at  the  issue  of  the  writ,  cannot  be  determined  in  this  manner  by 
proceedings  instituted  against  those  afterwards  succeeding  to  the  office.  Com- 
monwealth v.  Smith,  45  Penn.  St.  59.  This  writ  will  be  granted,  although  the 
defendant  lias  resigned  the  office,  if  the  object  of  the  relator  is  not  only  to  cause 
the  defendant  to  vacate  the  office,  but  to  establish  another  candidate  in  the  office, 
as  the  relator  is  entitled  in  such  case  to  have  judgment  of  ouster,  or  a  disclaimer 
upon  the  record.  Queen  v.  Blovzard,  Law  Rep.  2  Q.  B.  55.  In  Neall  v.  Hill, 
16  Cal.  145,  it  is  said  that  the  removal  of  a  mere  private  or  ministerial  officer  of 
a  corporation  is  a  right  that  belongs  to  the  corporation  alone,  and  the  courts 
have  no  jurisdiction  to  remove  such  officer,  or,  it  seems,  even  to  enjoin  him  from 
acting. 

8  Ante,  chap.  xxni.  And  see  State  v.  Commercial  Bank  of  Manchester,  33 
Miss.  474,  where  the  acts  and  omissions  that  will  allow  a  forfeiture  of  the  charter 
by  quo  warranto,  are  discussed. 

9  In  the  matter  of  the  Long  Island  Railw.,  19  Wendell,  37;  2  Am.  Railw.  C. 
453.  In  quo  warranto  against  a  usurper  by  a  claimant,  it  is  competent  for  the 
court  to  oust  the  usurper  without  determining  the  right  of  the  claimant.  Gano 
v.  State,  10  Ohio  (N.  S.),  237.  See  Doane  v.  Scanned,  7  Cal.  393;  People  v. 
Same,  id.  43^.  One  who  is  relator  in  a  qim  warranto,  on  the  ground  of  the  use 
of  blank  voting  papers,  but  who  has  previously  used  blank  voting  papers  on  the 
same  and  former  elections,  and  has  been  formerly  elected  in  that  mode,  is  pre- 
cluded from  maintaining  the  writ  upon  that  ground.  Sed  quaire.  Queen  v. 
Lofthome,  L.  R.  1  Q.  B.  433. 

10  Rex  v.  Truro,  3  B.  &  Aid.  590. 


704        INFORMATIONS   IN   THE   NATURE   OF   QUO    WARRANTO.      PART  VII. 

*  0.  And  where  a  railway  company  were  authorized  to  make  a 
line,  with  branches,  and  they  completed  a  portion  of  it,  but  aban- 
doned other  parts  of  it,  this  is  not  a  public  mischief,  which  will 
entitle  the  attorney-general  to  file  an  information,  in  the  nature  of 
a  quo  warranto  against  the  company,  to  prevent  them  from  opening 
the  part  completed,  until  the  whole  is  perfect.11 

7.  And  an  information  in  the  nature  of  a  quo  warranto,  under 
the  Massachusetts  statute,  will  not  lie  against  a  railway  company, 
in  behalf  of  a  stockholder,  merely  because  they  issued  stock  below 
the  par  value,12  and  began  to  construct  their  road,  before  the 
requisite  amount  of  stock  was  subscribed,  it  not  appearing  that 
the  petitioner's  private  right  was  thereby  put  at  hazard.13 

8.  The  form  of  the  judgment  in  proceedings  of  this  character 
will  depend  upon  the  facts  proved,  and  the  object  to  be  attained. 
Where  the  defect  in  defendant's  right  is  merely  formal,  like  the 
omission  to  take  the  requisite  oath,  the  judgment  is  for  a  suspen- 
sion *  of  the  exercise  of  the  function  until  qualified  by  compliance 

11  Attorney-General  v.  Birmingham  Junction  Railw.,  3  McN.  &  Gor.  453; 
s.  c.  8  Eng.  L.  &  Eq.  243. 

12  See  Howe  v.  Derrel,  43  Barb.  504 ;  Commonwealth  v.  Farmers'  Bank,  2 
Grant's  Cas.  392. 

13  Hastings  v.  Amherst  &  Belchertown  Railw.,  9  Cush.  596.  In  this  case  the 
charter  provided  that  the  road  extend  "  through  Amherst."  Another  section  of 
the  charter  provided  that  the  road  might  be  divided  into  two  sections,  one  ex- 
tending "to  the  village  of  Amherst,"  and  the  other  from  "  Amherst  to  Montague." 
It  was  held,  that  taking  land  for  the  road,  upon  a  route  not  terminating  "in  either 
village  of  Amherst,"  was  not  the  exercise  of  a  franchise,  not  granted  by  the  char- 
ter. Any  material  departure  from  the  points  designated  in  the  charter  for  the 
location  of  a  railway,  is  a  violation  of  the  charter,  for  which  the  franchise  maybe 
seized  upon  quo  warranto,  unless  the  legislature  has  waived  this  right  of  the  state 
by  acts  recognizing  the  legality  of  such  violation  of  the  charter.  Mississippi,  &c. 
Railw.  v.  Cross,  20  Ark.  443.  Where  an  act  incorporating  a  railway  provided 
that  no  subscription  should  be  received  and  allowed,  unless  there  should  be  paid 
to  the  commissioners  at  the  time  of  subscribing  five  dollars  per  share,  and  this 
provision  was  not  complied  with,  but  the  corporation  organized  itself,  elected 
directors,  &c,  and  began  the  construction  of  its  road,  by  making  contracts  to 
grade  it,  some  of  the  contractors  not  being  aware  of  this  failure  to  make  the 
stipulated  payment  on  the  shares  at  subscription,  and  one  of  the  stockholders, 
who  was  aware  of  that  failure  when  he  became  a  stockholder,  and  who  had  voted 
at  the  election  of  directors,  and  otherwise  aided  in  setting  up  the  corporation, 
applied  to  the  court  for  leave  to  file  an  information  in  the  nature  of  a  quo  warranto 
against  the  directors,  to  compel  them  to  show  by  what  authority  they  exercised 
their  powers  :  it  was  held  that  this  application  should  be  rejected.  Cole  v.  Dyer, 
29  Ga.  434. 

[*669,  670] 


§  166.         INFORMATIONS    IN    THE    NATURE    OF    QUO    WARRANTO.  705 

with  the  requisite  formality.14  But  if  there  be  shown,  or  con- 
fessed, a  total  defect  of  title  in  defendant,  there  is  a  judgment  of 
ouster  or  forfeiture.15  And  where  it  is  intended  to  dissolve  the 
corporation,  judgment  to  that  effect  should  be  given  in  form.15 

9.  The  relator  is  liable  to  costs  if  he  fail,  and  is  ordinarily 
entitled  to  recover  costs  if  he  prevail.  But  where  the  office  is  one 
where  the  party  is  compellable  to  serve,  and  is  accepted  and  held 
in  good  faith,  it  is  not  common  to  allow  costs  against  the  incum- 
bent upon  judgment  of  ouster.16 

10.  In  some  of  the  states  a  process  or  proceeding  under  the 
name  of  "  Quo  Warranto  "  has  been  applied  to  test  the  question  of 
corporate  existence  and  power,  on  the  ground  of  forfeiture  of  cor- 
porate rights  by  means  of  the  omission  to  perform  acts  required 
by  the  charter,  or  of  an  excess  of  power  having  been  resorted  to, 
in  either  case  in  violation  of  granted  powers  and  duties.17 

11.  And  where  the  charter  of  a  plank  road  company  provides 
for  the  security  of  travel,  and  for  the  enforcement  of  the  duty  of 
the  company  by  suitable  penalties,  and  the  legislature,  after  the 
road  was  built  and  in  use,  imposed  an  entire  forfeiture  of  the 
whole  franchise  of  the  corporation  for  failure  to  keep  any  portion 
of  the  road  in  repair,  it  was  held  to  be  such  a  modification  of  the 
charter  as  did  not  come  within  the  proper  exercise  of  the  police 
power  of  the  state,  and  therefore  void  as  a  violation  of  the  contract 
in  the  grant  of  the  charter.18 

12.  But  where  a  turnpike  charter  provides  penalties  upon  the 
company  and  its  agents  for  neglecting  to  keep  the  road  in  good 
and  perfect  repair,  such  provision  cannot  be  held  to  deprive  the 
state  of  its  sovereign  power  to 'annul  a  grant  when  its  purposes 
have  failed,  through  either  the  positive  acts  or  neglect  of  the 
grantees ;  and  when  the  fact  of  such  act  or  neglect  is  duly  estab- 
lished, the  special  remedy  provided  by  the  charter  will  be  regarded 
as  merely  cumulative.     It  is  of  the  very  essence  of  a  corporation, 

14  Rex  v.  Clarke,  2  East,  75.  But  a  judgment  of  ouster  will  conclude  the 
party  in  any  subsequent  proceeding.     lb. 

15  State  v.  Bradford  Village,  32  Vt.  50;  Rex  v.  Tyrrell,  11  Mod.  335. 

16  Rex  v.  Wallis,  5  T.  R.  375 ;  State  v.  Bradford  Village,  supra. 

17  Danville  &  W.  L.  Plank-Road  Co.  v.  The  State,  16  Ind.  456.  See  also 
The  People  v.  J.  &  M.  Plank-Road  Co.,  9  Mich.  285,  where  the  extent  of  the 
remedy  and  the  form  of  procedure  is  extensively  discussed,  but  by  a  divided 
court. 

18  The  People  v.  J.  &  M.  Plank-Road  Co.,  9  Mich.  285. 

45  [*670] 


706        INFORMATIONS    IN    THE    NATURE    OF    QUO    WARRANTO.       PART  VII. 

*as  a  political  existence  or  abstraction,  that  it  should  always  be 
liable  to  dissolution  by  a  surrender  of  its  corporate  franchises, 
or  by  a  forfeiture  of  them,  either  by  non-user  or  misuser.10 

13.  In  a  case  where  the  statute  directed  the  public  prosecuting 
officers  to  take  proceedings  to  determine  whether  the  charter  and 
franchises  of  a  turnpike  company  had  become  forfeited  by  non- 
user  or  abuser,  where  no  form  of  remedy  is  prescribed,  it  was 
held  that  scire  facias  was  the  proper  one  to  be  adopted,  and  all 
that  is  required  to  be  set  forth  in  the  writ  is  enough  to  inform  the 
company  of  the  causes  of  complaint  and  the  extent  of  redress 
sought.19  This  procedure  is  very  much  the  same,  in  effect,  as 
that  by  quo  warranto,  already  discussed,  except  that  it  is  in  the 
form  of  a  civil  action.19 

14.  It  is  no  excuse  for  a  turnpike  company  not  keeping  its  road 
in  repair,  that  the  state  have  chartered  a  railway  along  the  same 
route,  and  thereby  disabled  the  company  from  maintaining  its  road 
in  the  state  of  repair  required  by  the  charter.19  Nor  is  it  a  bar 
to  the  proceedings  that  the  company  have  applied  all  their  tolls  to 
the  repair  of  the  road.19 

15.  This  remedy  under  the  Massachusetts  General  Statutes,20 
in  order  to  redress  an  injury  to  private  rights  or  interests  from 
the  exercise  by  a  private  corporation  of  a  franchise  or  privilege  not 
conferred  by  law,  does  not  supersede  the  jurisdiction  in  equity  in 
cases  of  private  nuisance.21 

19  Wash.  &  Bait.  T.  Road  Co.  v.  The  State,  19  Md.  239.  The  particular 
forms  of  the  pleading,  both  on  the  part  of  the  plaintiff  and  defendant,  are  here 
extensively  discussed,  as  well  as  many  questions  in  regard  to  the  admissibility  of 
evidence. 

80  Chap.  145,  §  16. 

31  Fall  River  Iron  Works  v.  Old  Colony  &  Fall  River  Railw.,  5  Allen,  221. 

[•671] 


APPENDIX   OF   LATER   CASES. 


APPENDIX     OF     LATER     CASES 
REPORTED   WHILE    THE    WORK   WAS    IN   PRESS. 


CORPORATIONS. 


Sales  of  shares  on  the  stock  exchange,  custom  and  usage. 

In  the  recent  case  of  Merry  v.  Nickalls,  Law  Rep.  7  Ch.  App.  733, 
the  effect  of  sales  on  the  stock  exchange  is  again  largely  reviewed  by 
the  Lords  Justices,  and  most  of  the  former  cases  upon  that  subject 
brought  under  consideration.  It  was  here  held  that,  where  the  jobber 
for  the  vendee  of  shares  gave  the  name  of  an  infant  as  the  vendee,  he 
was  not  thereby  exonerated  from  responsibility  to  indemnify  the  vendor 
from  new  calls  or  other  charges  upon  the  shares ;  inasmuch  as  he  had 
not  complied  with  the  fair  construction  of  the  rule  of  the  exchange, 
requiring  him  to  name  one  as  transferee  who  was  capable  of  accepting 
the  same,  an  infant  having  no  capacity  to  bind  himself  by  such  a  con- 
tract. Maxted  v.  Paine,  ante,  vol.  i.  p.  138,  was  approved,  and  Rennie 
v.  Morris,  Law  Rep.  13  Eq.  203,  was  overruled.  The  judgment  of 
Blackburn,  J.,  in  the  second  action  of  Maxted  v.  Paine,  Law  Rep.  6 
Eq.  132,  is  here  commented  upon. 

The  court  say  the  contract  is  not  between  the  brokers  of  the  vendor 
and  vendee,  but  between  the  vendor  and  the  party  whom  the  broker 
gives  up  as  the  ultimate  purchaser ;  and  therefore  until  the  broker 
names  such  person  as  the  vendee,  and  who  is  capable,  and  consenting 
to  stand  in  that  place,  the  jobber  is  not  discharged  from  liability  to  the 
vendor. 

Issue  of  stock. 

An  assignee  may  sue  a  corporation  for  refusing  to  issue  or  transfer 
certificates  of  stock,  although  the  assignment  was  not  made  on  its 
books,  in  pursuance  of  the  charter  and  by-laws.  Bait.  City  Passenger 
Railw.  v.  Sewell,  35  Md.  238. 

In  an  action  at  law  against  a  corporation' for  refusing  to  issue  or  trans- 
fer stock,  the  plaintiff  may  claim,  in  the  same  suit,  the  value  of  the 
stock,  together  with  the  dividends  due  thereon ;  and  in  such  case  the 


710  APPENDIX    OP    LATER    CASES. 

measure  of  damages  would  be  the  value  of  the  stock  at  the  time  of 
the  demand,  together  with  the  dividends  accrued  thereon  at  that  time, 
with  interest  to  the  day  of  trial.     lb. 

Misapplication  of  joint  stock. 

In  the  case  of  Pickering  v.  Stephenson,  Law  Rep.  14  Eq.  322,  before 
Vice-Chancellor  Wickens,  a  very  learned  and  able  equity  judge,  the 
question  of  the  misapplication  of  the  funds  of  joint-stock  companies 
anise  in  a  novel  form,  and  received  a  very  marked  and  sensible  deter- 
mination. The  application  was  for  an  injunction  upon  the  English 
directors  of  a  railway  company,  established  by  the  firman  of  the  Turk- 
ish Sultan,  from  Smyrna  to  Aidin,  in  Turkey,  against  applying  the 
funds  of  the  company  to  pay  the  expense  of  a  libel  suit,  instituted  by 
themselves  against  a  person  who  had  acted  as  secretary  of  the  commit- 
tee, and  to  compel  the  directors  to  refund  the  money  already  so  applied 
by  them.  The  learned  judge  declared,  that  as  there  was  no  evidence 
of  the  Turkish  law  upon  the  subject,  by  which  this  action  must  be  gov- 
erned, he  would  assume  that  it  was  part  of  the  universal  law  of  all 
civilized  and  commercial  countries,  that  the  ultimate  governing  author- 
ity, whether  directors  or  shareholders,  of  all  joint-stock  companies, 
whether  partnerships  or  corporations,  were  bound  by  the  very  law  of 
the  association  to  apply  the  funds  solely  to  the  purposes  of  the  organi- 
zation, and  that  all  the  statutes,  rules,  and  by-laws  of  the  association 
were  to  be  construed  with  reference  to  the  existence  of  such  law. 

The  learned  judge  said,  if  there  was  evidence  before  him  that  the 
rule  of  the  Turkish  law  were  different,  he  would  be  bound  to  follow  it. 
But,  in  the  absence  of  all  evidence  upon  the  point,  he  must  act  upon 
the  universal  rule  of  law  already  stated.  The  order  was  made  accord- 
ing to  the  prayer  of  the  bill,  except  as  to  refunding  what  had  been 
already  paid,  which,  under  the  circumstances,  was  not  decreed. 


EMINENT    DOMAIN. 


Constructive  power  to  take  private  property. 

Power  to  appropriate  the  property  of  a  railway  in  such  a  manner 
as  to  destroy  or  greatly  injure  its  franchise  or  render  it  impossible,  or 
very  difficult,  to  prosecute  the  object  of  its  organization,  cannot  be  in- 
ferred from  the  general  grant  of  power  to  establish  a  road  across  its 
track,  but  such  general  grant  is  sufficient  to  warrant  the  laying  of  a 
road  across  its  track  wherever  public  necessity  demands  it ;  and  as  to 
whether  that  public  necessity  exist,  the  City  Council  must  be  the  judge. 
City  of  Hannibal  v.  Hann.  &  St.  Joseph  Railw.,  49  Mo.  480. 


APPENDIX  OF  LATER  CASES.  711 

Compensation. 

When  private  propei'ty  is  taken  for  a  public  use,  the  "just  compen- 
sation therefor,"  which  the  Constitution  requires,  consists  in  paying  the 
owner  not  only  the  value  of  the  portion  taken,  but  also  the  diminution 
of  the  value  of  that  from  which  it  is  severed.  Bigelow  v.  W.  W.  Railw., 
27  Wis.  478. 

Designation  of  the  route  of  a  railway. 

A  railway  company,  in  determining  upon  its  route,  acts  arbitrarily. 
It  is  not  required  to  consult  any  one.  Norton  v.  Wallkill  Val.  Railw., 
61  Barb.  474. 

No  one  in  fact  is  entitled  to  any  notice  on  the  subject  until  the  route 
has  been  actually  designated,  and  the  map  and  profile  filed.  Then,  for 
the  first  time,  the  couqmny  is  in  a  condition  to  notify  the  property 
holders  whose  land  is  to  be  taken.     lb. 

And  any  person  feeling  aggrieved  may  then,  within  a  certain  time 
after  written  notice  of  the  route,  apply  to  a  justice  of  the  Supreme 
Court  for  the  appointment  of  commissioners,  who,  on  a  hearing  of  the 
parties,  are  to  affirm  or  alter  the  route.     lb. 

Surveys  of  the  line  of  railway  and  notice  to  land-owners. 

Where  the  statute  requires  the  projectors  of  new  lines  of  railway  to 
file  a  map  and  profile  of  the  same,  and  to  give  notice  of  the  same  to  all 
land-owners  affected  by  the  same,  such  notice  cannot  be  dispensed  with. 
Ex  parte  The  New  York  &  Boston  Railw.,  62  Barb. 

Taking  land  by  railway  company. 

When  the  plaintiff's  land  was  protected  from  the  flowage  of  a  river 
by  a  ridge  of  land,  no  part  of  which  was  on  his  land,  and  the  defend- 
ants, in  constructing  their  road,  made  a  deep  cut  through  the  ridge, 
through  which  the  water,  in  floods  and  freshets,  came  upon  the  plain- 
tiff's land,  carrying  sand,  gravel,  and  stones  upon  it,  the  court  held  this 
amounted  to  a  taking  of  the  land  within  the  Constitution,  and  if  the 
legislature  intended  to  authorize  it,  as  no  provision  was  made  for  com- 
pensation, such  authorization  was  of  no  force,  and  the  defendants  were 
liable  for  the  damages,  even  if  they  had  constructed  their  road  with 
due  care  and  skill.  Eaton  v.  Boston,  Concord,  &  Mont.  Railw.,  51 
N.  H.,  not  reported. 

Lands  injuriously  affected. 

The  plaintiff  had  established  upon  his  own  land  arrangements  for 
rifle  practice,  and,  to  secure  range  for  the  bullets  beyond  his  own  land, 
had  obtained  the  consent  of  the  owner  of  marsh  lands  next  adjoining 


712  APPENDIX  OF  LATER  CASES. 

his  own,  upon  the  payment  of  £49  per  annum  as  an  agreed  commutation 
for  .ill  damage  to  cattle  grazing  on  the  marsh;  and  had  also  obtained 
a  lease  ..('  meadows  beyond  for  the  same  purpose.  The  first  arrange- 
ment was  liable  to  be  terminated  at  any  time  by  either  party,  on  giving 
the  prescribed  notice.  The  defendants,  under  parliamentary  powers, 
laid  a  road  to  their  works  across  the  meadows,  which  rendered  it  im- 
possible t"  continue  the  rifle  practice.  The  plaintiff  took  proceedings 
under  the  Lands  Clauses  Act  to  recover  compensation  for  the  injury  he 
had  sustained,  and  it  Avas  held  he  was  entitled  to  recover,  and  that  the 
precarious  nature  of  his  title  to  the  marsh  land  was  no  bar  to  his  claim, 
but  only  to  be  considered  in  estimating  the  amount  of  the  damage. 
Holt  v.  Gas  Light  &  Coke  Co.,  L.  R.  7  Q.  B.  728. 

Where  the  plaintiff  was  the  occupier,  under  a  long  lease,  of  a  house 
and  premises  in  the  city  of  London,  which  were  opposite  a  draw-dock 
in  the  river  Thames,  where  he  carried  on  the  business  of  a  carman  and 
contractor.  By  reason  of  the  nearness  of  the  premises  to  the  dock  and 
the  convenient  access  thereto,  they  were  of  more  value,  either  for  use 
or  sale.  The  defendants,  in  constructing  the  Thames  Embankment, 
filled  in  the  dock,  and  thus  cut  off  the  access  to  the  public  street  ad- 
joining the  plaintiff's  premises,  which  thereby  became,  as  premises 
either  to  sell  or  occupy  in  their  then  state,  and  with  reference  to  the 
uses  to  which  any  owner  or  occupier  might  put  them,  permanently 
damaged  and  lessened  in  value.  Held,  that  the  plaintiff's  interest  was 
injuriously  affected  within  the  meaning  of  the  statute,  and  that  he  was 
entitled  to  compensation.  The  case  of  Rickett  v.  Met.  Railw.  Co.,  Law 
Rep.  2  H.  Lds.  175,  distinguished  ;  Beckett  v.  Midland  Railw.  Co.,  Law 
Rep.  3  C.  P.  82,  sustained.  M'Carthy  v.  Met.  Bd.  of  Works,  Law  Rep. 
7  C.  P.  508. 

Riparian  owners. 

A  riparian  owner  who  is  cut  off  from  access  to  a  navigable  river  by 
a  railway  being  built  between  high  and  low  water  mark,  has  no  claim 
for  damages  against  the  company.  Tomlin  v.  Dubuque,  &c.  Railw.,  32 
Iowa,  106. 

Railway  station. 

The  approaches  to  a  railway  station  upon  land  taken  by  the  company 
for  that  purpose,  and  prepared  and  kept  in  repair  by  them,  is  not  a 
public  street,  or  highway,  over  which  the  public  have  a  right  of  passage. 
Curtis  v.  Emery,  Law  Rep.  7  Exch.  369. 

Railway  crossiny  a  hiyhway. 

A  railway  company  whose  track  crosses  a  highway  cannot  be  held 
liable  for  the  consequences  of  obstructions  placed  thereon  by  a  stranger, 
if  the  material  constituting  the  obstructions  is  neither  the  property,  nor 


APPENDIX  OF  LATER  CASES.  713 

under  the  care  and  control,  of  the  corporation,  although  the  existence 
of  the  obstruction  is  brought  to  the  knowledge  of  its  agents.  Pitts., 
Ft.  Wayne,  &  Chi.  Railw.  v.  Maurer,  21  Ohio  (N.  S.),  421. 

Nor  will  it  affect  the  responsibility  of  the  company  that  the  person 
so  placing'  the  obstruction  was  a  brakeman  on  the  company's  road,  if 
he  did  it  for  his  own  purposes,  without  the  authority  of  the  company, 
and  was  not  at  the  time  acting  within  the  scope  of  his  employment  and 
duty  as  brakeman.     lb. 

The  right  of  a  railway  corporation  to  use  its  road  at  the  place  of 
crossing  a  highway  is  not  subordinate  to  the  right  of  the  public  to  use 
the  highway  :  each  must  exercise  reasonable  care  not  to  interfere  un- 
necessarily with  the  use  of  the  road  by  the  other.     lb. 

Right  of  way  by  dedication. 

Use  by  the  public  for  eighteen  months  and  declaration  of  owner 
sufficient.     North  London  Railw.  v.  St.  Marys,  21  W.  R.  226. 

Rand  damages  do  not  pass  to  the  grantee  of  the  land. 

Damages  for  land  taken  by  a  railway  company  are  personal,  and  do 
not  pass  by  a  conveyance  of  the  land.  McFadden  v.  Johnson,  in  Sup. 
Ct.,  Penn.,  not  yet  reported. 

Right  to  take  land  for  national  uses. 

The  State  may  take  land  by  its  right  of  eminent  domain  for  the  use 
of  the  United  States  for  the  site  of  a  post-office.  Burt  v.  Merchants' 
Insurance  Co.,  106  Mass.  356. 

We  should  have  no  doubt  the  United  States  might,  by  act  of  Con- 
gress, take  land  for  any  necessary  public  national  use. 


FIRES. 

A  railway  company  is  liable  for  damages  resulting  from  fire,  commu- 
nicated by  cinders  emitted  from  an  engine  operated  on  its  road,  in 
consequence  of  the  negligence  of  its  servants,  or  a.  defect  in  the  engine, 
or  want  of  the  best  contrivance  in  use  for  the  prevention  of  the  spread 
of  fire.     Jackson  v.  Chi.  &  N.  W.  Railw.,  31  Iowa,  176. 


While  a  railway  company  is  under  no  obligation  to  fence  its  depot 
and  station  groundsill  order  to  protect  itself  from  liability  for  stock 


714  APPENDIX  OF  LATER  CASES. 

killed,  such  is  not  the  case  where  it  has  a  switch  merely,  unless  the 
same  is  upon  or  a  part  of  a  station  ground,  and  the  onus  is  upon  the 
company  to  show  this.     Comstock  v.  Des  Moines  Val.  Railw.,  32  Iowa, 

A  railway  company  is  not  excused  from  fencing  the  track  of  its  road 
through  a  town  or  city  merely  because  of  its  passage  through  such 
locality,  without  reference  to  the  question  whether  it  crosses  the  public 
highways  of  a  town  or  city.     Ells  v.  Pacific  Railw.,  48  Mo.  231. 

As  a  matter  of  law,  railway  corporations  may  not  be  bound  to 
erect  fences  before,  or  while  they  are  constructing  their  road  through 
any  particular  landholder's  premises,  yet  they  must  act  with  a  prudent 
regard  to  the  rights  of  others ;  and  if  they  fail  in  this  duty  they  are 
chargeable  with  negligence,  and  must  answer  for  the  consequences. 
Thus  they  are  bound  to  use  reasonable  care  to  prevent  the  cattle  of 
others  from  coming  on  the  adjoining  owner's  fields  and  injuring  him. 
(Citing  Holden  v.  Rutland  &  Burlington  Railw.,  30  Vt.  297.)  Com- 
ings v:  Hann.  &  Cent.  Mo.  Railw.,  48  Mo.  512. 

The  liability  of  a  railway  corporation  to  fence  extends  not  only  to 
cases  where  the  travelling  public  would  be  endangered  by  the  act 
which  caused  the  damage  to  the  adjoining  owner,  —  as  in  case  of  a 
collision  with  his  cattle,  —  but  to  those  where,  by  reason  of  the  failure 
of  the  road  to  fence,  cattle  strayed  from  the  track  on  to  the  land  bor- 
dering the  road,  and  destroyed  the  crops.  If  the  obligation  to  fence 
may  be  imposed  at  all  it  is  absolute  and  unqualified,  and  those  who 
disregard  it  may  not  say  that  this  or  that  special  liability  is  an  improper 
one.     Trice  v.  Hann.  &  St.  Jos.  Railw.  Co.,  34  Mo.  438. 

The  statute  making  railway  companies  liable  for  injuries  to  animals 
without  regard  to  wilful  misconduct,  negligence,  or  accident,  when  the 
railway  is  not  fenced,  applies  to  a  place  within  the  limits  of  a  city 
where  it  would  not  be  illegal  or  improper  to  maintain  a  fence.  Jeffer- 
son, Madison,  and  Ind.  Railw.  v.  Parkhurst,  34  Ind.  501. 

That  bars  were  down,  or  boards  were  off  a  fence  along  a  railway 
through  which  horses  might  have  come  upon  the  track,  when  they  were 
run  into  by  the  cars,  throwing  the  train  off",  and  killing  the  plaintiff's 
intestate,  would  not  of  itself  constitute  any  ground  for  the  plaintiff's 
recovery  against  the  company.  Dewey  v.  Chi.  &  N.  W.  Railw.,  31 
Iowa,  373. 

A  railway  company  is  required  to  use  only  ordinary  and  reasonable 
care  and  diligence  in  maintaining  and  keeping  in  repair  a  fence  which 
it  has  constructed  along  the  line  of  its  road,  and  it  will  not  be  liable  for 
cattle  killed  on  its  road,  unless  it  has  failed  to  exercise  such  ordinary 
care  in  the  repair  of  the  fence.  Lemmon  v.  Chi.  &  N.  W.  Railw.,  32 
Iowa,  151. 


APPENDIX    OP   LATER   CASES.  715 

Injury  to  fellow-servant. 

A  brakeman  on  a  freight  train,  in  obedience  to  the  orders  of  his 
superior,  attempted  to  go  from  the  top  of  a  car  to  the  ground  to  change 
a  switch,  and,  by  reason  of  the  ladder  on  the  car  being  defective,  he  fell, 
and  was  run  over.  The  company  were  held  responsible.  Chicago  & 
N.  W.  Railw.  v.  Jackson,  55  111.  492. 

The  company  is  not  responsible  to  a  fireman  who  was  damaged  by 
the  misplacement  of  the  switch  whereby  the  engine  ran  off  the  track, 
the  fault  not  being  traced  to  the  company  or  any  of  its  employes. 
There  is  no  rule  of  law  in  New  York  requiring  railways  to  furnish  a 
safe  road-bed  to  insure  the  safety  of  its  employes.  [That  rule,  if  it 
exists,  applies  to  passenger  transportation.]  Tinney,  Adm'r,  v.  Boston 
&  Albany  Railw.,  62  Barb.  218. 

Where  the  plaintiff,  while  employed  by  the  defendant  as  a  draftsman 
in  his  locomotive  works,  fell  over  an  embankment  of  dirt  thrown  up  in 
deepening  a  cellar  about  the  premises  by  workmen  in  the  defendant's 
employ  and  under  his  control,  and  suffered  serious  injury,  it  was  held 
he  was  not  precluded  from  a  recovery  by  reason  of  the  negligence  beino- 
that  of  fellow-servants,  he  not  being  employed  in  the  same  business 
with  those  digging  the  cellar.  Baird  v.  Pettit,  29  Philadelphia  Repts. 
397. 

Where  the  servant  brought  an  action  against  the  master  for  an  in- 
jury sustained  by  falling  through  a  floor  in  the  master's  shop  over  which 
it  was  his  duty  to  pass,  and  which  he  knew  to  be  decayed,  and  that  it 
had  holes  in  it,  but  could  not  know  the  extent  of  the  risk  in  passing 
over  it,  without  examining  it  beyond  where  he  had  access,  it  was  held 
the  court  could  not  say  he  was  guilty  of  negligence,  but  that  question 
must  be  determined  by  the  jury.  Huddleston  v.  Lowell  Machine 
Shop,  106  Mass.  282. 


contracts  ultra  vires. 

Contracts  between  railways  with  reference  to  future  legislation. 

Two  railway  companies,  having  leasing  powers,  made  a  lease,  and 
inserted  therein  covenants  for  amalgamating  the  two  companies  on  the 
proper  legislation  being  had,  and  it  was  held  not  to  vitiate  the  lease, 
although  based  upon  the  consideration  of  the  covenants  for  amalga- 
mation.    Central  Railw.  v.  Mayor,  &c.  of  Macon,  43  Ga.  605. 

Contract  to  issue  preferred  stock. 

Such  a  contract  made  by  a  railway  company  having  no  such  special 
powers,  in  order  to  complete  their  road,  and  making  such  stock  the  basis 


716  APPENDIX  OF  LATER  CASES. 

of  the  qualification  of  the  directors,  is  not  ultra  vires,  and,  where  third 
persons  have  acted  upon  the  faith  of  it,  cannot  be  avoided  by  the  share- 
holders.    Hazlehurst  v.  Savannah,  &c.  Railw.,  id.  13. 

Money  obtained  for  contract  ultra  vires. 

A  railway  company  borrowed  money  to  enable  it  to  do  an  act  ultra 
vin  s,  and  was  sued  for  it :  Held,  that  a  shareholder  could  not  maintain 
;i  bill  to  enjoin  the  collection  of  the  money.  Bradley  v.  Ballard,  55  111. 
413. 


CONSTRUCTION. 

Distance  —  How  measured. 

It  seems  to  be  now  finally  settled  by  the  decision  of  the  Exchequer 
Chamber,  in  England,  that  distance,  whether  in  statute  or  a  contract, 
is  to  be  measured  in  a  straight  line,  as  delineated  upon  the  map,  disre- 
garding both  the  inequalities  of  the  surface  and  the  effect  of  the  curva- 
ture of  the  earth's  surface.  Monflet  v.  Cole,  21  Weekly  Rep.  175, 
affirming  s.  c.  20  W.  R.  339. 

The  distance  between  two  objects  is  to  be  measured  from  the  nearest 
points  of  such  objects.     lb. 

Negligence. 

Building  the  roof  of  a  dwelling,  so  that  the  ice  and  snow  collecting 
thereon  from  natural  causes  will  naturally  fall  uj)on  persons  passing 
along  the  highway,  renders  the  owner  responsible  for  all  damage  in 
that  way,  hajmening  without  the  fault  of  the  person  injured,  and  it  will 
not  exonerate  the  owner,  that  all  the  rooms  in  the  house  are  occupied 
by  tenants,  if  he  retains  control  of  the  roof.  Shipley  v.  Fifty  Associ- 
ates, 106  Mass.  194  ;  s.  c.  101  Mass.  251. 


COMMON    CARRIERS. 

Responsibility  for  acts  of  servants. 

Carriers  of  passengers  by  water  are  bound  to  afford  them  reasonable 
accommodations  and  kind  and  respectful  treatment  while  on  board  the 
vessel,  and  they  are  responsible  for  any  infringement  of  this  under- 
taking by  any  servant  employed  by  them.  Hence  such  carriers  are 
responsible  for  an  assault  and  battery  on  a  passenger  committed  by 


APPENDIX  OF  LATER  CASES.  717 

the  steward  and  table  waiters  on  the  boat,  because  the  passenger  justi- 
fied the  conduct  of  another  passenger,  who  did  not  appear  to  have 
done  any  thing  worthy  of  blame.     Bryant  v.  Rich,  106  Mass.  180. 

Baggage  —  What  is. 

A  feather-bed,  not  intended  for  use  on  the  voyage,  is  not  proper 
baggage  for  a  female  passenger  on  board  an  ocean  steamer  from  Ire- 
land to  the  United  States.  Connelly  v.  Warren,  106  Mass.  146.  The 
facts  being  conceded,  it  is  a  question  of  law  whether  the  article  is 
proper  baggage.     lb. 

When  carrier's  responsibility  as  carrier  attaches. 

Where  goods  are  delivered  from  time  to  time,  and  there  is  no  ex- 
press direction  to  transport  immediately,  it  depends  upon  the  nature 
of  the  goods  and  the  course  of  business  whether  they  are  to  be  trans- 
ported upon  each  separate  delivery  or  be  kept  to  await  the  final 
delivery,  and  all  be  carried  at  once.  In  the  former  case,  the  carrier's 
responsibility  attaches  upon  each  separate  delivery,  and  in  the  latter 
only  when  all  the  goods  have  been  delivered.  Watts  v.  Boston  & 
Lowell  Railw.,  106  Mass.  466. 

Damages  for  non-delivery  in  time. 

A  common  carrier  is.  not  responsible  for  the  loss  upon  a  contract  for 
the  sale  of  goods  not  delivered  in  time  to  meet  the  contract,  but  only 
for  the  loss  in  the  market  between  the  time  the  goods  were  due  and 
when  actually  delivered,  the  carrier  having  no  knowledge  of  the  sale. 
Scott  v.  Boston  &  N".  O.  Steamship  Co.,  106  Mass.  468. 

Stoppage  in  transitu.      Consignor  and  consignee. 

Goods  still  in  hands  of  carrier,  right  exists.  Mohr  v.  Boston  &  Al- 
bany Railw.,  106  Mass.  67. 


COMMON    CARRIERS    OF    PASSENGERS. 

Regulations  as  to  passengers. 

A  regulation  by  a  railway  company  restricting  the  holders  of  a  cer- 
tain class  of  tickets  to  special  trains,  nothing  of  the  kind  appearing  on' 
the  tickets,  will  not  justify  the  expulsion  of  the  holder  of  such  a  ticket 
from  the  regular  trains,  he  having  taken  passage  thereon  without 
knowledge  of  the  regulation.  Maroney  v.  Old  Colony  &  Newport 
Railw.,  106  Mass.  153. 


718  APPENDIX  OF  LATER  CASES. 


I'si/ig  unnecessary  force  in  expelling  one  from  the  cars. 

This  subject  is  extensively  discussed  in  Coleman  v.  N".  Y.  &  N.  H. 
Railw..  106  Mass.  160.  The  plaintiff  being  wrongfully  in  the  car, 
the  burden  is  upon  him  to  show  that  his  own  wrongful  acts  did  not 
contribute  to  the  misconduct  of  which  he  complains.  lb.  He  must 
show  that  the  injury  of  which  he  complains  resulted  wholly  from  the 
wrongful  act  of  defendant.     lb.     See  Murphy  v.  Deane,  101  Mass.  455. 

Passenger  leaving  street  cars. 

If  a  passenger  attempt  to  leave  the  cars  of  a  street  railway  without 
the  knowledge  of  those  in  charge  of  the  car,  they  not  being  in  fault,  in 
not  knowing,  he  cannot  recover  for  any  injury  he  may  sustain  by  reason 
of  the  sudden  starting  of  the  car  during  his  attempt  to  alight  from  it. 
Nichols  v.  Middlesex  Railw.,  106  Mass.  463. 

Evidence  —  Declarations  by  servant.    Res  gestae. 

Where  the  female  plaintiff  was  injured  on  one  of  the  defendants 
cars  by  a  collision,  happening  through  the  alleged  fault  of  the  driver,  it 
was  held  not  competent  to  prove  the  declaration  of  the  conductor, 
made  immediately  after  the  accident,  in  reply  to  the  statement  of  a 
fellow-passenger,  that  "  This  fellow's  conduct  ought  to  be  reported," 
the  conductor  saying,  "  He  has  already  been  reported,  for  he  has  been 
off  the  line  five  or  six  times  to-day  ;  he  is  a  new  driver  : "  It  was  also 
held,  by  all  the  judges  of  the  Court  of  Exchequer,  that  this  statement 
of  the  conductor  was  not  an  admission  binding  the  company,  being  no 
part  of  the  res  gestae,  either  of  the  accident  or  of  the  doings  of  the  con- 
ductor; Baron  Bramwell  saying,  "It  is  impossible  to  admit  the  remark 
as  part  of  the  res  gestae ;  it  was  in  no  sense  one  of  the  surrounding- 
circumstances  ;  the  res  were  all  gestce  by  the  time  the  remark  was  made, 
and  the  plaintiff's  cause  of  action  was  quite  complete  without  any  such 
words,  which,  indeed,  for  all  they  had  to  do  with  the  accident,  might 
as  well  have  been  sjjoken  when  the  car  had  been  taken  back  to  the 
stable."     Agassiz  &  wife  v.  London  Tramway  Co.,  21  W.  R.  199. 


MANDAMUS. 


The  fact  that  a  member  of  a  corporation  has  been  excluded  by  the 
corporation,  for  four  successive  meetings,  from  speaking  or  voting,  is 
not  sufficient  ground  for  a  writ  of  mandamus  to  the  corporation  to 
restore  him  to  his  risrhts.     Crocker  v.  Old  South  Church,  106  Mass.  489. 


[This  additional  section  to  Chapter  XXXII.,  Vol.  II.,  was  prepared  at  the  last 
moment  and  placed  in  the  only  vacant  space.] 


CONSTITUTIONAL     QUESTIONS. 


SECTION    V. 


Power  of  Congress  to  regulate  traffic  on  Interstate  Railways. 
whence  such  power  is  derived.     How  illustrated. 


From 


ORIGINAL  PURPOSE   OF   THE   PROVISION. 


1.  The  natural  import  and  construction  of  the 

terms. 

2.  Not  restricted  to  the  then  existing  modes  of 

transportation. 

3.  Commerce    embraces    all   the  intercourse 

among  nations  or  states ;  the  means  and 
appliances  of  trade  and  communication, 


in  all  its  parts  and  bearings ;  passen- 
gers as  well  as  commodities. 
The  railway  traffic,  extending  beyond  the 
limits  of  one  state,  must  either  be  no 
part  of  the  commerce  of  the  country,  or 
else  be  subject  to  the  control  of  Con- 
gress. If  not,  it  is  not  subject  to  any 
supervision. 


II. — CONSIDERATION   OF    THE    DECISIONS. 


5.  Review  of  the  decisions  of  the  national 
courts  on  the  question.  The  regulation 
of  commerce  extends  to  all  waters  in 
fact  navigable  for  boats  of  ten  tons 
burden  and  upwards.  Communicating 
with  different  states. 


6.  The  exceptions  from  the  powers  of  Con- 

gress to  regulate  commerce. 

7.  The  control  and  regulation,  by  Congress, 

of   interstate    traffic     upon    railways 
seems  a  necessity. 

8.  It  argues  lameness  in  the  government  to 

suppose  the  contrary. 


III.  —  CONGRESSIONAL   LEGISLATION. 


9.  Comments  upon  the  legislation  of  Con- 
gress and  the  opinions  of  federal  judges 
directly  upon  the  point. 


10.  Summary  of  the   restdts,  and  the  pros- 
pects for  the  future. 


§  233  b.  This  power,  if  it  exist,  must  be  derived  from  the  provision 
in  the  United  States  Constitution,  giving  Congress  power  to  "  regulate 
commerce  with  foreign  nations  and  among  the  several  states."  It 
will  be  perceived,  that  the  power  to  regulate  commerce  with  foreign 


720  CONSTITUTIONAL   QUESTIONS. 

nations,  and  among  the  several  stales,  must  be  precisely  the  same,  be- 
cause it  is  given  in  the  same  clause  of  the  Constitution  and  in  precisely 
the  same  words.  The  meaning  of  this  provision  might  be  illustrated, 
to  some  extent,  it  mighl  be  natural  to  expect,  from  three  obvious 
sources:  1.  The  original  purpose  and  fair  construction  of  the  provision 
itself;  2.  The  decisions  of  the  national  courts  in  regard  to  it ;  3.  The 
legislation  of  Congress  under  the  provision. 

I.  —  AS    TO    THE    ORIGINAL    PURPOSE    OF    THE    PROVISION. 

Tt  will  be  more  convenient  to  consider  the  decisions  under  this  head 
also  to  some  extent. 

1.  The  natural  import  and  construction  of  the  terms  of  the  Consti- 
tution would  not  seem  to  admit  of  much  doubt,  judging  from  the  lan- 
guage merely.  The  meaning  of  the  word  "  commerce  "  at  the  time 
the  Constitution  was  adopted  must  have  been  definitely  settled,  and 
well  enough  understood.  The  word,  as  well  understood,  is  derived 
from  the  Latin  commercium,  and  which  is  found,  almost  in  its  original 
form,  in  most  of  the  languages  of  modern  Europe.  It  means,  in  its 
most  literal  sense,  intercourse  and  exchange,  both  of  persons  and  com- 
modities. It  is  more  nearly  synonymous  with  traffic,  than  with  any 
other  word  in  the  language,  probably.  Its  great  natural  divisions, 
for  ages,  have  been,  foreign  and  inland.  The  regulation  of  all  the 
former,  and  that  portion  of  the  latter  which  extended  beyond  the  lim- 
its of  a  single  state,  was,  as  we  have  seen,  by  the  organic  law  of  our 
national  government,  secured  to  the  nation,  and  the  remainder  was 
naturally  left  to  the  particular  state  where  it  exclusively  existed. 

2.  It  is  obvious  that  the  purpose  of  the  provision  was  not  to  be  con- 
fined to  future  commerce  carried  on  in  the  same  mode  it  then  was ; 
i.  e.,  by  ship  and  boat  navigation  propelled  exclusively  by  wind.  If 
that  had  been  so  the  provision  could  not  have  been  applied  to  that 
large  portion  of  commerce  now  carried  on  by  steam  power,  which  has 
already  become  very  considerable,  and  is  constantly  increasing  in  a 
rapidly  advancing  ratio.  In  the  very  infancy  of  steam  navigation  the 
question  arose  in  the  well-known  case  of  Gibbons  v.  Ogden,1  how  far 
this  provision  of  the  United  States  Constitution  extended.     The  opin- 

1  'J  Wheaton,  1.  It  may  not  be  entirely  inappropriate  to  name  here  the  date  of 
steam  navigation  first  reaching  some  of  our  important  lakes  and  rivers,  and  the  large 
commercial  towns  and  cities.  It  is  stated  in  Frothingham's  "  Rise  of  the  Republic/' 
a  book  of  most  unquestionable  authority,  that,  prior  to  the  year  1800,  eight  or  ten 
boats,  of  twenty-five  tons  each,  sufficed  for  all  the  carrying  trade  between  Pittsburg 
and  Cincinnati;  that  the  first  government  vessel  appeared  on  Lake  Erie  in  1802; 
that  the  first  steamboat  was  launched  at  Pittsburg  in  1811 ;  the  first  on  Lake  Michi- 
gan in  1826  ;  and  the  first  appeared  at  Chicago  in  1832.  Frothingham's  Rise  of  the 
Republic,  p.  2,  in  note.., 


POWER   OF   CONGRESS   OVER   INTERSTATE   RAILWAYS.  721 

ion  in  this  case  contains  a  most  invaluable  commentary  upon  that 
question,  inasmuch  as  it  was  so  near  the  date  of  that  instrument  as 
presumptively  to  embrace  the  result  of  all  the  contemporary  aids  to  the 
construction,  some  of  which  are  specifically  referred  to  in  the  argument ; 
and  also  because  it  fixes  the  scope  and  operation  of  the  provision  by  the 
court  having- exclusive  final  jurisdiction  of  the  question;  and,  finally, 
because  it  has  been  always  followed,  in  later  cases. 

3.  It  seems  to  have  been  made  a  question,  in  Gibbons  v.  Ogden,1  how 
far  the  power  of  Congress  extended  to  the  regulation  of  the  means  by 
which  foreign  and  interstate  commerce  was  carried  on.  It  was  argued 
that  the  power  extended  only  to  the  regulation  of  trade,  or  the  mere 
buying  and  selling,  or  exchange,  of  commodities.  But  the  court  treated 
•  this  as  a  studiously  narrow  construction  of  the  provision,  and  nearly 
synonymous  with  its  denial  or  extinction.  The  court  held  the  national 
Constitution  to  be  an  instrument  of  "enumeration"  of  powers,  and  not 
of  "  definition."  Mr.  Chief  Justice  Marshall  said  :  "  Commerce,  un- 
doubtedly, is  traffic,  but  it  is  something  more;  it  is  intercourse.  It 
describes  the  commercial  intercourse  between  nations,  and  parts  of 
nations,  in  all  its  branches;  and  is  regulated  by  prescribing  rules  for 
carrying  on  that  intercourse."  The  learned  judge  very  justly  argues, 
that  "  all  America "  had  understood,  from  the  first,  that  commerce 
"  comprehended  navigation ; "  and  that  the  control  and  regulation  of 
it,  in  this  extended  sense,  had  been  one  of  the  leading  motives  for 
adopting  the  present  frame  of  government.2  It  seems  never  to  have 
entered  the  minds  of  the  delegates  of  the  convention,  that  the  regula- 
tion of  commerce  among  the  states  or  with  foreign  nations  could  be 
conducted  by  the  states.  The  experience  already  had  in  that  attempt 
had  shown  its  utter  futility.  The  most  that  any  objector  asked  in  the 
convention  was  that  it  be  left  to  Congress,  but  that  a  two-thirds,  or 

2  This  is  clearly  enough  shown  by  the  prior  history  of  the  government.  The  first 
attempt  at  organized  national  action  was  the  "  Association  "  of  1774,  which  has  been 
called  the  "  Commencement  of  the  American  Union."  Hildreth,  iii.  46  ;  Frothing- 
ham,  873.  The  very  basis  of  this  compact  was  the  regulation  of  trade  and  intercourse 
between  the  colonies  and  the  mother  country.  See  copy  of  the  document  in  Froth- 
ingham,  373.  At  the  time  of  the  adoption  of  the  Articles  of  Confederation  the  regu- 
lation of  commerce  was  left  to  the  separate  states.  It  was,  no  doubt,  in  a  great 
measure,  the  intolerable  nature  of  the  results  of  thus  referring  all  commercial  regula- 
tions to  the  states,  which  urged  the  people  to  adopt  the  Constitution.  Mr.  Justice 
Johnson  states  this  in  Gibbons  v.  Ogden,  9  Wheaton,  222,  in  his  opinion.  And  it  is 
noticeable,  that  in  all  the  projects  for  a  Constitution,  and  in  all  the  drafts  and  reports 
brought  before  the  convention,  this  provision,  as  to  the  regulation  of  commerce,  is 
found  in  precisely  the  same  form,  even  to  the  words,  as  it  now  stands,  with  the  single 
exception  that  the  portion  affecting  trade  with  the  Indians  was  added  near  the  close 
of  the  convention,  and  is  only  found  in  the  final  draft.  1  Elliot's  Debates,  221-230; 
2  Madison  Papers,  1226,  3  id.  154'J.  It  is  thus  rendered  very  obvious  that  all  the 
convention,  and  presumptively  all  the  country,  had  become  convinced  that  the  regu- 
lation of  commerce,  both  foreign  and  among  the  states,  must  be  left  to  Congress. 

vol.  i.  46 


722  CONSTITUTIONAL   QUESTIONS. 

larger  majority,  be  required  to  establish  binding  regulations.8  The 
former  experience  of  the  attempts  of  the  states  to  regulate  commerce, 
outside  of  the  particular  state,  seems  to  have  convinced  all  that  the 
thing  was  simply  impossible,  by  the  most  convincing  of  all  arguments, 
the  reductio  ad  absurdum.  And  it  seems  never  to  have  entered  the 
mind  of  any  <>ne  that  the  power  of  regulating  foreign  or  interstate  com- 
merce' was  susceptible  of  division  between  the  nation  and  the  states. 
It  was,  therefore,  made  entirely  satisfactory  to  the  court,  in  Gibbons  v. 
Ogden,1  that  the  "  regulation  of  commerce,"  committed  to  Congress, 
embraced  the  entire  thing  with  all  its  means,  instruments,  and  appli- 
ances. Thus  Mr.  Chief  Justice  Marshall  says:  "Commerce,  as  the 
word  is  used  in  the  Constitution,  is  a  unit,  every  part  of  which  is  indi- 
cated by  the  term.  If  this  be  the  admitted  meaning  of  the  word,  in 
its  application  to  foreign  nations,  it  must  carry  the  same  meaning 
throughout  the  sentence,  and  remain  a  unit,"  as  to  the  interstate  com- 
merce. This  term  the  learned  judge  further  defines  as  embracing  all 
commerce  carried  on  within  the  limits  of  the  United  States,  which  ex- 
tended to  more  than  one  state,  and  which  did  not  begin  and  end  in 
the  same  state,  so  as  to  "be  the  exclusive  internal  commerce  of  a 
state."  Mr.  Justice  Johnson,  in  delivering  a  concurring  opinion  to  that 
of  the  Chief  Justice,  uses  language  still  more  explicit,  if  possible.  The 
learned  judge  said:  "Commerce,  in  its  simplest  signification,  means  an 
exchange  of  goods;  but,  in  the  advancement  of  society,  labor,  transpor- 
tation, intelligence,  care,  and  various  mediums  of  exchange,  become 
commodities,  and  enter  into  commerce ;  the  subject,  the  vehicle,  the 
agent,  and  their  various  operations,  become  the  objects  of  commercial 
regulation.  Ship-building,  the  carrying  trade,  and  propagation  of  sea- 
men, are  such  vital  agents  of  commercial  prosperity,  that  the  nation 
which  could  not  legislate  over  these  subjects  would  not  possess  power 
to  regulate  commerce."  The  learned  judge  argues,  with  great  clear- 
ness, that  all  these  were  intended  and  understood  to  be  embraced 
within  the  range  of  the  provision  for  the  regulation  of  commerce  by 
Congress.  And  the  Chief  Justice,  in  the  principal  opinion,  said  :  "The 
real  and  sole  question  seems  to  be,  whether  a  steam  machine,  in  actual 
use,  deprives  the  vessel  of  the  privileges  conferred  by  a  license.  In  con- 
sidering this  question,  the  first  idea  which  presents  itself,  is,  that  the  laws 
of  Congress  for  the  regulation  of  commerce  do  not  look  to  the  princi- 
ples by  which  vessels  are  moved."  It  is  here  also  decided  that  com- 
merce embraces  the  transportation  of  passengers  as  well  as  goods  and 

5  3  Madison  Papers,  1450,  where  Mr.  Pinkney  moved  to  require  a  two-tliirds  vote, 
and  stated  the  great  commercial  staples  of  the  different  sections,  and  among  them  the 
grain-producing  interest,  as  requiring  special  protection,  the  same  which  is  now  de- 
manding the  regulation  of  railway  tariffs,  and  which  seems  to  require  that  something 
be  speedily  done  in  that  direction,  both  for  the  protection  of  the  railways  and  the 
public. 


POWER   OF   CONGRESS   OVER   INTERSTATE   RAILWAYS.  723 

other  commodities,  and  that  the  means  by  which  it  is  done  "is  left 
entirely  to  individual  discretion." 

4.  It  is  thus  made  very  apparent,  from  a  careful  examination  of  the 
argument  in  Gibbons  v.  Ogden,1  by  which  transportation  of  goods  and 
passengers,  by  steamboats  and  steam  vessels  of  every  kind,  is  brought 
under  the  same  provisions,  originally  framed  for  the  regulation  of  that 
which  was  carried  on  by  sailing  vessels;  that  if  the  question  had  then 
presented  itself  to  the  mind  of  the  court  how  for  railway  traffic  should 
be  brought  under  the  same  power  of  regulating  commerce  which  had 
already  been  extended  to  the  traffic  by  navigation,  there  can  really  be 
no  fair  doubt  how  it  would  have  been  determined.  The  fact  that  the 
entire  subject  of  regulating  all  commerce  among  the  different  states, 
including  all  the  means  and  appliances  by  which  it  was  carried  on,  was 
committed  to  Congress,  and  that,  thereafter,  the  states  were  to  have  no 
concurrent  action  in  the  regulation  of  the  same,  would  seem  to  reduce 
the  question  of  Congress  having  the  power  of  regulating  interstate  rail- 
way traffic  to  the  single  inquiry,  whether  it  forms  any  portion  of  the 
commerce  of  the  country,  which  requires  to  be  regulated  at  all.  Those 
who  assume  to  argue  that  Congress  has  no  power  to  regulate  the  traffic 
upon  these  extended  lines  of  railway  reaching  from  one  end  of  the 
Union  to  the  other,  must,  if  they  would  meet  the  question  fairly,  either 
say,  the  traffic  on  these  extended  lines  of  railway,  amounting  to  many 
millions  annually,  probably  ten  times  as  much  as  the  entire  commerce 
of  the  country  at  the  time  of  the  adoption  of  the  Constitution,  is  not 
commerce  at  all,  or,  if  it  be,  is  not  subject  to  any  regulation  or  control 
whatever.  For  it  is  certain  the  states  have  neither  the  power  or  ca- 
pacity to  regulate,  to  any  purpose,  or  with  any  efficiency,  this  interstate 
railway  traffic.  It  must  then  come  under  the  control  of  Congress  or 
be  left  to  its  own  devices  and  impulses, —  an  experiment  never  yet  tried 
in  any  other  country. 

II. SPECIFIC    CONSIDERATION    OF    THE    DECISIONS. 

5.  It  may  not  be  amiss  to  refer  to  some  of  the  later  decisions  of  the 
national  courts  upon  the  construction  and  extent  of  the  power  of  Con- 
gress to  regulate  commerce  among  the  states.  In  one  case,4  before  Mr. 
Justice  Story,  it  was  declared :  The  power  to  regulate  commerce  in- 
cludes the  power  to  regulate  navigation  with  foreign  nations,  and 
among  the  states ;  it  is  an  exclusive  power  which  may  be  exercised 
with  or  without  positive  regulations.  There  are  numerous  cases  where 
it  has  been  held  that  Congress  has  the  exclusive  final  power  to  deter- 
mine what  amounts  to  an  obstruction  to  navigation.5     The  power  to 

*  The  Chusan,  2  Story,  455. 

5  Pennsylvania  v.  Wheeling  Bridge  Co.,  18  How.  (U.  S.)  421 ;  Silliman  v.  Hudson 
Eiver  Bridge  Co.,  1  Black  (U.  S.),  582  ;  a.  c.  4  Blatch.  (C.  C.)  74,  395  ;  The  Passaic 
Bridges,  3  Wall.  782;  United  States  v.  Bailroad  Bridge  Co.,  6  McLean  (C.  C),  517. 


724  CONSTITUTIONAL   QUESTIONS. 

regulate  commerce  comprehends  the  control,  for  that  purpose,  and  to 
the  extent  necessary,  of  all  the  navigable  waters  of  the  United  States, 
which  arc  accessible  from  a  state  other  than  that  in  which  they  lie;  and 
includes  necessarily  the  power  to  prevent  any  obstruction  to  their  nav- 
igation.6  The  phrase  "  navigable  waters  "  is  not  now,  as  formerly,  re- 
stricted to  those  waters  where  the  tide  ebbs  and  flows;  but  extends  to 
all  waters,  on  lakes  or  rivers,  which  are  in  fact  navigable  for  boats  of  ten 
tons  burden  and  upwards,  and  which  communicate,  by  navigation,  with 
the  sea,  or  with  two  or  more  states.  This  is  now  the  limit  of  the  ad- 
miralty jurisdiction  of  the  national  courts.7  In  all  this  wide  range,  all 
commerce  and  all  the  means  and  instruments  of  commerce,  are  under  the 
exclusive  regulation  and  control  of  the  laws  of  Congress.8  It  is  applied 
even  to  steamboats  employed  as  lighters.9 

6.  It  will  not  be  important  here  to  enumerate  the  exceptions  to  the 
regulation  of  commerce  by  Congress.  It  does  not,  of  course,  extend  to 
that  commerce  which  is  exclusively  within  the  limits  of  a  single  state ; 
which  begins  and  ends  within  the  same  state.10  Hence,  a  state  law, 
conferring  an  exclusive  right  to  the  navigation  of  the  upper  waters  of 
a  river  wholly  within  the  limits  of  such  state,  and  separated  from  tide 
water  by  falls,  which  are  impassable  for  purposes  of  navigation ;  and 
not  forming  a  continuous  line  of  commerce  between  two  or  more  states, 
or  with  a  foreign  country,  is  not  unconstitutional.11  And  it  seems  to 
have  been  considered,  by  the  later  decisions,  that  so  long  as  Congress 
wholly  abstains  from  all  attempts  to  regulate  any  particular  department 
of  commerce,  either  foreign  or  interstate,  state  laws  in  regard  to  the 
same  will  not  be  declared  void.12  Thei'e  are  some  subjects  of  state  cog- 
nizance, which  in  their  operation  and  enforcement  produce  an  effect, 
incidentally,  upon  commerce  beyond  the  limits  of  a  single  state,  such 
as  pilotage,  ferries,  health  regulations,  the  support  of  paupers,  police, 
and  crime,  which,  nevertheless,  must  be  left  to  the  control  of  the  states, 
and  whose  legislation,  if  fairly  kept  within  necessary  limits,  must  be 
upheld. 

7.  We  have  thus  seen  how  extensive  and  how  exclusive  is  the  na- 
tional control  over  every  species  of  commerce  extending  beyond  the 
limits  of  a  single  state,  and  how  entirely  all  its  instruments  are  brought 
under  the  national  control,  in  every  existing  mode  of  its  being  carried 

«  Gilman  v.  Philadelphia,  3  Wall.  713. 

I  The  Genesee  Chief  v.  Fitzhugh,  12  How.  (U.  S.)  443. 

8  Jolly  v.  Terre  Haute  Draw  Bridge  Co.,  6  McLean  (C.  C),  237. 

9  Foster  v.  Davenport,  22  How.  (U.  S.)  244. 

10  The  Passaic  Bridges,  3  Wall.  782;  Halderman  v.  Beckwith,  4  McLean  (C.  C), 
286. 

II  Veazie  v.  Moor,  14  How.  (U.  S.)  568. 

12  United  States  v.  Railroad  Bridge  Co.,  6  McLean  (C.  C),  517  ;  Woodman  v.  Kil- 
bourne  .Man.  Co.,  6  Am.  Law  Reg.  (N.  S.)  238;  Cooley  v.  Board  of  Wardens,  12 
How.  (U.  S.)  299;  Gilman  v.  Philadelphia,  3  Wall.  713. 


POWER   OF   CONGRESS    OVER   INTERSTATE   RAILWAYS.  725 

forward,  as  far  as  those  questions  have  arisen  in  the  courts.  We  have 
also  seen  how  readily  new  modes  of  carrying  on  commerce  have  hitherto 
been  brought  under  national  regulation.  If  we  refer  to  the  numerous 
acts  of  Congress,  for  the  security  of  property  and  life  connected  with 
commerce,  and  for  its  encouragement  and  protection  in  all  its 
relations  and  departments,  and  reflect  how  almost  exclusively  the 
entire  subject  is  brought  under  the  supervision  and  control  of  Congress, 
we  shall  find  slight  ground  to  question  that  such  supervision  will  be 
extended  to  the  interstate  commerce  upon  railways,  and  that  it  may 
rightfully  be  so  extended,  since  there  seems  to  be  no  other  mode  of  ren- 
dering this  interstate  railway  traffic  safe  and  just  to  passengers  and  the 
owners  of  freight,  and  at  the  same  time  reasonably  remunerative  to  the 
companies. 

8.  Whether,  then,  this  question  is  viewed  in  the  light  of  abstract 
reason  and  necessity,  as  forming  one  of  the  most  important  channels  of 
commerce,  both  national  and  foreign  ;  or  in  that  of  authority,  from  the 
analogy  of  the  decisions  affecting  commerce  carried  on  by  means  of  navi- 
gation, we  can  entertain  no  reasonable  doubt  or  question  that  the  national 
or  interstate  commerce  upon  our  railways  must  be  placed  and  kept  un- 
der the  regulation  and  control  of  Congress.  It  would  be  very  wonderful, 
after  our  railways  had,  by  voluntary  connections,  extended  their  lines 
in  almost  every  direction  throughout  our  entire  territory,  and  even 
across  the  continent,  and  thus  made  themselves  the  carriers  of  the 
world,  and  engrossed  almost  the  entire  commerce  of  the  nation,  so  far 
as  it  is  carried  on  among  the  several  states,  and  a  large  share  of  the 
carrying  business  of  other  nations,  in  seeking  shorter  and  safer  routes 
by  land  than  can  be  found  upon  the  ocean;  if,  after  all  this,  we  are 
soberly  to  be  told  that  there  is  positively  no  earthly  power  adequate  to 
regulate  and  control  this  vast  monopoly  of  transportation,  it  will  afford 
an  illustration  of  the  defectiveness  of  our  governmental  organization 
and  arrangements,  which  we  have  not  hitherto  felt  ourselves  very  ready 
to  admit. 

III. CONGRESSIONAL    LEGISLATION. 

9.  Railway  transportation  has  grown  up  so  recently,  and  is  still  in 
so  undeveloped  and  unsettled  a  state,  that  public  attention  has  not 
been  very  generally  or  extensively  called  to  the  question  of  national 
control.  There  are,  too,  some  special  reasons  why  the  public  attention 
has  not  been  attracted  in  this  direction.  The  railways  have  mostly 
been  chartered  by  the  several  states,  with  primary  reference  to  the 
internal  business  of  such  states.  The  extension  of  lines,  and  even 
the  practical  consolidation  of  the  different  interests,  have  been  reached 
by  traffic  arrangements  among  the  different  companies.  This  might 
more  properly  have  been  done  through  the  legislation  of  Congress,  in 


720  CONSTITUTIONAL   QUESTIONS. 

the  regulation  of  interstate  commerce..  But  it  seems  not  to  have 
occurred  even  to  the  companies  themselves,  until  a  late  day,  that 
they  required  any  sanction  of  the  laws  of  Congress  for  forming  these 
extended  lines  of  interstate  commerce  and  intercourse.  The  first  act 
of  Congress  upon  the  subject  was  in  1866.13  This  statute  is  very  brief, 
and  seems  to  be  nothing  more  than  an  enabling  act,  evidently  passed 
at  the  instance  of  the  railways.  Since  that  time  nothing  in  the  way  of 
legislation  has  been  done.  The  subject  has  been  before  the  Committee 
of  Commerce,  in  the  House  of  Representatives,  and  the  chairman,14  at 
the  late  session,  introduced  a  bill  for  the  purpose  of  securing  uniformity 
of  charges  upon  railways  throughout  the  country,  which  is,  undoubt- 
edly, a  very  great  desideratum.  But  the  influence  of  the  numerous 
railway  companies  is  so  extended  and  so  controlling,  that  we  fear  it 
may  be  a  long  time  before  any  detailed  enactment  of  Congress,  securing 
all  that  is  demanded  to  render  railway  traffic  throughout  the  country 
safe  and  reasonably  uniform  in  price,  will  be  passed  through  all  its 
stages,  so  as  to  become  the  recognized  law  of  the  land.  And  when  this 
is  accomplished  we  are  but  one  step  advanced  towards  the  final  accom- 
plishment of  the  great  desiderata  connected  with  railway  traffic. 
The  most  difficult  part  of  the  work,  the  strict  and  impartial  enforcement 
of  the  law,  still  remains.  And  in  our  country,  probably  in  all  free 
countries,  it  is  much  less  difficult  to  secure  good  laws  than  to  maintain 
their  strict  enforcement.  And  this  is  especially  difficult  with  an  elec- 
tive judiciary  for  short  terms,  as  is  now  the  case  in  most  of  the  states. 
Judges,  uj:>on  delicate  or  difficult  questions,  proverbially  court  delay ; 
and  this  may  more  naturally  occur  when  a  few  months  may  carry  them 
beyond  the  necessity  of  acting  at  all.  And  popular  elections  do  not 
commonly  bring  the  most  iron-willed  men  into  prominence.  Good- 
natured,  easy-minded  men,  are,  as  a  rule,  largely  more  popular.  But 
we  have  great  hopes  that,  when  these  questions  are  matured  for  the 
action  of  the  national  judiciary,  we  shall  see  a  far  different  result,  —  one 
that  will  tell  upon  the  business  and  character  of  the  country.  Two  of 
the  most  eminent  of  the  federal  judiciary  have  already  borne  most  un- 
equivocal testimony  in  favor  of  the  view  for  which  we  contend  :  Mr. 
Justice  Miller,  of  the  Supreme  Court,  in  his  opinion  in  the  Circuit 
Court,  in  Gray  v.  The  Clinton  Bridge  &  others,15  and  Mr.  Justice  Dillon, 
of  the  Circuit  Court,  in  an  extended  note  to  the  report  of  the  case  just 
cited.  Mr.  Justice  Miller  here  says:  "For  myself,  I  must  say  that  I 
have  no  doubt  of  the  right  of  Congress  to  promote  all  needful  and  proper 
regulations  for  the  conduct  of  the  immense  traffic  over  any  railroad 
which  has  voluntarily  become  part  of  one  of  those  lines  of  interstate 

13  An  act  to  facilitate  commercial,  postal,  and  military  communication  among  the 
several  states,  approved  June  15,  1866. 

14  Hon.  Samuel  Shellabarger,  of  Ohio,  an  eminent  jurist  and  judge, 
i*  7  Am.  Law  Reg.  (N.  S.)  149. 


POWER    OP    CONGRESS    OVER    INTERSTATE    RAILWAYS.  727 

communication,  or  to  authorize  the  creation  of  such  roads  when  the 
purposes  of  interstate  transportation  of  persons  or  property  justify  or 
require  it."  This  expression  of  opinion  by  Mr.  Justice  Miller  Mr.  Jus- 
tice Dillon  quotes,  and  warmly  approves,  in  his  note  to  this  case. 

10.  It  will  add  very  little  to  the  weight  of  the  authority  already 
quoted,  to  say,  that  our  own  studies  upon  the  important  question,  we 
have  here  so  imperfectly  discussed,  continued,  as  they  have  now  been 
for  nearly  the  period  of  a  generation,  and  since  the  earliest  stages  of  rail- 
way development  in  the  country,  have  irresistibly  led  to  the  same  opin- 
ion, so  well  expressed  by  Mr.  Justice  Miller.  It  would  be  strange  if 
that  opinion  should  not  ultimately  prevail,  both  in  Congress  and  in  the 
courts.  When  we  reflect  how  large  an  amount  of  the  commerce,  at 
one  time  carried  on  upon  the  great  rivers  of  the  country,  has  already 
been  transferred  to  the  railways,  and  that  the  small  remnant  still 
remaining  upon  the  rivers  and  canals  is  fast  going  the  same  way,  it 
requires  no  spirit  of  prophecy  to  foresee  that  any  construction  exempt- 
ing the  traffic  upon  railways  from  the  commercial  clause  in  the  United 
States  Constitution,  must,  in  a  large  measure,  render  it  practically  nu- 
gatory, and  thus  largely  tend  to  defeat  the  very  pm-pose  of  that  provi- 
sion, by  throwing  us  back  into  the  uncertainty  and  confusion  existing 
under  the  Articles  of  the  Confederation,  which  no  patriot  can  contem- 
plate but  with  sorrow  and  dread,  and  which  we  cannot  believe  is  ever 
to  be  visited  upon  us  again,  through  so  shallow  a  device  as  this  attempt 
to  escape  the  proper  national  control  of  the  traffic  upon  interstate 
railways. 


END   OF   VOL.    I. 


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